Wasatch County v. Okelberry

2015 UT App 192

THE UTAH COURT OF APPEALS

WASATCH COUNTY,
Plaintiff, Appellant, and Cross-appellee,
v.
E. RAY OKELBERRY, BRIAN OKELBERRY, ERIC OKELBERRY,
AND WEST DANIELS LAND ASSOCIATION,
Defendants, Appellees, and Cross-appellants.

Opinion
No. 20140397-CA
Filed August 6, 2015

Fourth District Court, Heber Department
The Honorable Donald J. Eyre Jr.
No. 010500388

Scott H. Sweat and Craig N. Chambers, Attorneys
for Appellant
Don R. Petersen and Leslie W. Slaugh, Attorneys
for Appellees

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN and KATE A. TOOMEY
concurred.

VOROS, Judge:

¶1 This is the fourth appeal arising from a fourteen-year
dispute over whether certain country roads in Wasatch County
were dedicated to the public. During the course of this litigation,
the Utah Legislature amended the controlling statute. This
appeal asks whether that amendment controls this dispute. We
hold that it does and thus that all the roads in question were
dedicated to public use.
Wasatch County v. Okelberry

BACKGROUND

¶2 E. Ray Okelberry, Brian Okelberry, Eric Okelberry, and
West Daniels Land Association (collectively, the Okelberrys) are
owners of tracts of land located in Wasatch County (the
Property). The Property consists of mountainous terrain with
interconnecting dirt roads providing ingress and egress. The
public used these roads—Circle Springs Road, Maple Canyon
Road, Parker Canyon Road, Ridge Line Road, and Thornton
Hollow Road—from the late 1950s, when the Okelberrys
originally purchased the land, until the late 1980s. In the late
1980s or early 1990s, the Okelberrys began selling ‚trespass
permits‛ to hunters. Later, in the early or mid-1990s, the
Okelberrys placed the Property in a Cooperative Wildlife
Management Unit to be used exclusively for private hunting. To
enforce the trespass permits, the Okelberrys began closing and
locking the gates at the road entrances to the Property.

¶3 In 2001, Wasatch County sued the Okelberrys to enforce
the public’s use rights over the roads under section 72-5-104 of
the Utah Code (the Dedication Statute). After a bench trial in
June 2004, the trial court concluded that the Okelberrys had
dedicated some, but not all, of the roads to the public under the
Dedication Statute. The court further ruled that Wasatch County
had lost the ability to enforce the public’s use under the doctrine
of equitable estoppel. Wasatch County appealed the trial court’s
determination. We upheld the dedication finding but reversed
the equitable-estoppel finding. Wasatch County v. Okelberry
(Okelberry I), 2006 UT App 473, ¶ 33, 153 P.3d 745, rev’d, 2008 UT
10, 179 P.3d 768. On certiorari, our supreme court articulated a
different standard for the conduct necessary to disrupt public
use under the statute. See Wasatch County v. Okelberry
(Okelberry II), 2008 UT 10, ¶ 15, 179 P.3d 768. The supreme court
reversed our decision in Okelberry I and remanded the case to the
trial court with instructions to make findings of fact consistent
with the new standard. Id. ¶ 19.

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¶4 On remand, the trial court applied the new standard and
concluded that the Okelberrys had dedicated the roads to the
public. The Okelberrys appealed, and we held that the
Okelberrys must be permitted to present additional evidence of
any intent to disrupt the road dedication and to allow the trial
court to make findings of fact as to whether, when, and why the
Okelberrys locked the gates. Wasatch County v. Okelberry
(Okelberry III), 2010 UT App 13, ¶ 20, 226 P.3d 737.

¶5 In 2011, the Utah Legislature amended the Dedication
Statute. See Utah Code Ann. § 72-5-104 (LexisNexis Supp. 2011).

¶6 In November 2012 and February 2013, the Okelberrys
presented additional evidence to the trial court of their intent to
interrupt the public’s continuous use of the roads. In its
‚Findings of Fact and Conclusions of Law‛ dated January 14,
2014, the trial court concluded that the amended version of the
Dedication Statute did not apply to this case. And it concluded
that, under the standard announced in Okelberry II, the
Okelberrys had dedicated some, but not all, of the roads to
public use. But the court also made a conditional finding that if
the amended Dedication Statute applied, all the roads would be
dedicated to public use.

¶7 Wasatch County appeals, and the Okelberrys cross-
appeal.

ISSUES ON APPEAL

¶8 The parties raise three issues on appeal. First, Wasatch
County contends that the trial court erred in failing to apply the
amended version of the Dedication Statute to this case. Wasatch
County further contends that under the amended version of the
Dedication Statute the Okelberrys dedicated all of the roads at
issue to the public.

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¶9 Second, Wasatch County contends that even if the
amended version of the Dedication Statute does not apply, the
trial court’s findings of fact were insufficient under the standard
set forth in Okelberry II to support its conclusion that the
Okelberrys dedicated only some of the roads to public use.

¶10 Third, on cross-appeal the Okelberrys contend that the
trial court erred in failing to recognize that ‚maintaining locked
gates constitutes an overt act that interrupts public use.‛

ANALYSIS

I. Retroactivity

¶11 Wasatch County first contends that the trial court erred in
ruling that the Okelberrys dedicated some, but not all, of the
roads to public use. Wasatch County argues that this error
resulted from the court’s refusal to apply the amended version
of the Dedication Statute. The Okelberrys respond that applying
the amended version would contravene Utah law on
retroactivity and violate the mandate rule. ‚We review for
correctness questions regarding the law applicable in a case,
including the issue of whether a given law can or should be
applied retroactively.‛ Goebel v. Salt Lake City S. R.R., Co., 2004
UT 80, ¶ 36, 104 P.3d 1185.

¶12 The pre-2011 version of the Dedication Statute contained
no intent requirement:

A highway is dedicated and abandoned to the use
of the public when it has been continuously used
as a public thoroughfare for a period of ten years.

Utah Code Ann. § 72-5-104(1) (LexisNexis 2009).

¶13 However, in interpreting the pre-2011 version of the
Dedication Statute in Okelberry II, our supreme court explained

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that a property owner’s act would interrupt continuous public
use so long as it was ‚intended‛ and ‚reasonably calculated‛ to
do so:

An overt act that is intended by a property owner
to interrupt the use of a road as a public
thoroughfare, and is reasonably calculated to do
so, constitutes an interruption sufficient to restart
the running of the required ten-year period under
the Dedication Statute.

2008 UT 10, ¶ 15, 179 P.3d 768. Significantly, under the court’s
interpretation of the statute, an overt act intended and
reasonably calculated to interrupt the public’s continuous use
could legally interrupt the public’s use even if it did not actually
do so.

¶14 In defining ‚continuous use,‛ the 2011 amendments to the
Dedication Statute rejected the supreme court’s emphasis on
whether an act was ‚intended‛ or ‚reasonably calculated‛ to
interrupt public use and required that such an act ‚actually‛
interrupt public use:

Continuous use as a public thoroughfare . . . is
interrupted only when the regularly established
pattern and frequency of public use for the given
road has actually been interrupted to a degree that
reasonably puts the traveling public on notice . . . .

Utah Code Ann. § 72-5-104(3)(a) (LexisNexis Supp. 2011). The
2011 amendment also added a retroactivity provision:

The provisions of this section apply to any claim
under this section for which a court of competent
jurisdiction has not issued a final unappealable
judgment or order.

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The Legislature finds that the application of this
section:

(i) does not enlarge, eliminate, or destroy vested
rights; and

(ii) clarifies legislative intent in light of Utah
Supreme Court rulings in Wasatch County v.
Okelberry, 179 P.3d 768 (Utah 2008), Town of
Leeds v. Prisbrey, 179 P.3d 757 (Utah 2008), and
Utah County v. Butler, 179 P.3d 775 (Utah 2008).

Utah Code Ann. § 72-5-104(9).

¶15 The trial court here ruled that, although the amended
version of the Dedication Statute seemed to satisfy all the criteria
for retroactive application, to apply it here would implicate
substantive property rights:

However, since the statute affects substantive
property rights and cannot be applied
retroactively, the [c]ourt cannot apply this
standard to determine if the roads have been
dedicated to the public use.

Considering itself bound by the test announced in Okelberry II,
the trial court asked not whether the acts of the property owners
had actually interrupted public use, but whether those acts had
been intended and reasonably calculated to do so. Applying this
test, the trial court determined that some roads and portions of
roads had been dedicated and some had not.

¶16 However, the court added that if the amended version of
the statute applied—that is, if it were to consider whether the
Okelberrys’ actions actually interrupted public use rather than
merely being intended and reasonably calculated to do so—it
would reach a different conclusion: in light of ‚significant
testimony from Wasatch County witnesses that they were not on

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notice that the roads were not public roads as they never
encountered any interruption, . . . the roads would be dedicated
to the public use.‛

A. Exceptions to the Retroactivity Prohibition

¶17 The legislature has declared, ‚A provision of the Utah
Code is not retroactive, unless the provision is expressly
declared to be retroactive.‛ Utah Code Ann. § 68-3-3 (LexisNexis
2011). Accordingly, ‚*t+he courts of this state operate under a
statutory bar against the retroactive application of newly
codified laws.‛ State v. Clark, 2011 UT 23, ¶ 11, 251 P.3d 829. The
general prohibition against retroactive application, however,
admits of two exceptions. First, an amendment applies
retroactively if ‚the provision is expressly declared to be
retroactive.‛ Utah Code Ann. § 68-3-3. Second, ‚a narrow, judge-
made exception to the retroactivity ban‛ allows that ‚when the
purpose of an amendment is to clarify the meaning of an earlier
enactment, the amendment may be applied retroactively in
pending actions.‛ Clark, 2011 UT 23, ¶ 11 (citation and internal
quotation marks omitted); see also State v. Johnson, 2012 UT 68,
¶ 16, 290 P.3d 21. ‚This second exception applies to those narrow
circumstances in which the state legislature disagrees with this
court’s interpretation of a law and attempts to clarify that law’s
meaning through the amendment process. In such
circumstances, we apply the law as amended to pending
actions.‛ Clark, 2011 UT 23, ¶ 11 n.6. ‚Absent . . . these
exceptions, the retroactivity ban holds, and courts must apply
the law in effect at the time of the occurrence regulated by that
law.‛ Id. ¶ 11 (citation and internal quotation marks omitted).

¶18 Both exceptions apply here. First, the legislature expressly
declared that the amended version of the Dedication Statute
applies to non-final cases:

The provisions of this section apply to any claim
under this section for which a court of competent

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jurisdiction has not issued a final unappealable
judgment or order.

Utah Code Ann. § 72-5-104(9)(a) (LexisNexis Supp. 2011). ‚A
judgment, to be final, must dispose of the case as to all the
parties, and finally dispose of the subject-matter of the litigation
on the merits of the case.‛ Shurtz v. Thorley, 61 P.2d 1262, 1264
(Utah 1936); see also Anderson v. Wilshire Invs., LLC, 2005 UT 59,
¶ 9, 123 P.3d 393. At the time of the trial court’s ruling, no court
had issued a ‚final unappealable judgment or order.‛

¶19 Second, the express purpose of the amendment was ‚to
clarify the meaning of an earlier enactment,‛ see Clark, 2011 UT
23, ¶ 11 (citation and internal quotation marks omitted), where
the legislature apparently ‚disagree*d+ with *the Utah Supreme
Court’s+ interpretation‛ of the unamended statute, see id.
¶ 11 n.6. Indeed, the text of the amendment cites the very cases
whose interpretation of the statute the legislature apparently
rejected:

The Legislature finds that the application of this
section:

(i) does not enlarge, eliminate, or destroy
vested rights; and

(ii) clarifies legislative intent in light of Utah
Supreme Court rulings in Wasatch County v.
Okelberry, 179 P.3d 768 (Utah 2008), Town of
Leeds v. Prisbrey, 179 P.3d 757 (Utah 2008),
and Utah County v. Butler, 179 P.3d 775
(Utah 2008).

Utah Code Ann. § 72-5-104(9)(b).

¶20 The trial court acknowledged that the ‚new statute
specifically states that . . . the purpose of the amendment is to
clarify previous legislative intent.‛ But the court invoked the

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distinction between substantive and procedural rights.
‚*S+ubstantive rights and liabilities are determined by the law in
place at the time when a cause of action arises, and not [by] a
subsequently enacted statute.‛ Clark, 2011 UT 23, ¶ 12 (second
alteration in original) (citation and internal quotation marks
omitted). ‚*P+rocedural statutes enacted subsequent to the
initiation of a suit, on the other hand, . . . appl[y] not only to
future actions, but also to accrued and pending actions . . . .‛ Id.
(citation and internal quotation marks omitted). Concluding that
‚because this case deals with substantive property rights,‛ the
trial court determined that the amended version of the
Dedication Statute did not apply retroactively.

¶21 First, we note that the amendment itself declares that it
‚does not enlarge, eliminate, or destroy vested rights‛ but
merely ‚clarifies legislative intent.‛ See Utah Code Ann.
§ 72-5-104(9)(b)(ii). We understand these statements in context to
mean that the amended version of the statute simply clarifies
how the statute should have been understood from the
beginning. And we see no reason why this should not be the
case. The original version of the statute spoke of continuous use.
Id. § 72-5-104(1) (LexisNexis 2009). Okelberry II held that
continuous use could be legally interrupted by an act merely
intended and reasonably calculated to do so. 2008 UT 10, ¶ 15,
179 P.3d 768. Then in 2011, the legislature clarified that when it
said ‚continuously used‛ in the original version of the
Dedication Statute it meant actually continuously used—that is,
use that had not been ‚actually . . . interrupted.‛ Utah Code
Ann. § 72-5-104(3)(a) (LexisNexis Supp. 2011).

¶22 Relying principally on a 1977 case from the Louisiana
Court of Appeal, the Okelberrys argue that to apply the statute
to this pending case would be unconstitutional. See Vaughn v.
Williams, 345 So. 2d 1195 (La. Ct. App. 1977). Specifically, they
argue that to do so would violate due process, constitute a
taking without just compensation, see Utah Const. art. I, § 7,
enforce an ex post facto law, and impair the obligation of

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contracts, see id. § 18. ‚When addressing a constitutional
challenge to a statute, we presume that the statute is valid and
resolve any reasonable doubts in favor of constitutionality.‛ State
v. Willis, 2004 UT 93, ¶ 4, 100 P.3d 1218.

¶23 The Okelberrys do not support their constitutional
theories with pertinent legal authority and analysis beyond the
text—or in some cases only the name—of the provisions on
which they rely. Our supreme court has rejected the proposition
‚‘that there is a formula of some kind for adequate framing and
briefing of state constitutional issues before district courts and
*appellate+ court*s+.’‛ State v. Hoffmann, 2013 UT App 290, ¶ 52
& n.7, 318 P.3d 225 (quoting State v. Tiedemann, 2007 UT 49, ¶ 37,
162 P.3d 1106). However, ‚*i+ndependent analysis must begin
with the constitutional text and rely on whatever assistance
legitimate sources may provide in the interpretive process.‛
Tiedemann, 2007 UT 49, ¶ 37. Sources may include ‚historical and
textual evidence, sister state law, and policy arguments in the
form of economic and historical materials to assist us in arriving
at a proper interpretation of the provision in question.‛ Society of
Separationists v. Whitehead, 870 P.2d 916, 921 n.6 (Utah 1993).

¶24 The Okelberrys have not provided this level of analysis.
But we understand the crux of their argument—and the ruling of
the trial court—that to apply the amended version of the
Dedication Statute would deny them a substantive property
interest by changing the rules of the game after the final buzzer
has sounded.

¶25 We do not believe this case presents that scenario. The
Okelberrys are correct that, as a general rule, ‚we apply the law
as it exists at the time of the event regulated by the law in
question.‛ State v. Clark, 2011 UT 23, ¶ 13, 251 P.3d 829. Thus,
‚the general rule against retroactivity protects . . . reliance
interests.‛ State v. Perez, 2015 UT 13, ¶ 14, 345 P.3d 1150. ‚When
we conclude that there has been justifiable reliance on the prior
state of the law or that the retroactive operation of the new law

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may otherwise create an undue burden, the court may order that
a decision apply only prospectively.‛ Van Dyke v. Chappell, 818
P.2d 1023, 1025 (Utah 1991) (referring to a change in the common
law).

¶26 We begin the analysis, then, by considering the events
regulated by the law in question. Here, the events regulated by
the Dedication Statute—the public’s use of the roads and the
Okelberrys’ interruption of that use—occurred not later than
‚1989 or the early 1990s.‛ But the test on which the Okelberrys
rely—that continuous use may be interrupted by an overt act
‚intended‛ and ‚reasonably calculated‛ to do so—did not
appear in the law as it existed at that time; that formulation’s
pedigree extends no further back than a 2008 opinion of our
supreme court. See Okelberry II, 2008 UT 10, ¶ 15, 179 P.3d 768.
That test governed interpretation of the statute for a three-year
window—2008 to 2011—well after the events regulated by the
statute. Accordingly, the Okelberrys can have placed no reliance
on Okelberry II with respect to the roads at issue in this case.

¶27 The Okelberrys do not contend that they would prevail
under pre-2008 law. In any event, as explained above, our
examination of the 2011 amendment leads us to agree with the
legislature that, though lengthy, the 2011 amendment served
largely to reaffirm, not alter, the statute’s original meaning.

¶28 Accordingly, we cannot agree that adhering to the
legislature’s explicit directive to apply the statutory amendment
to active cases will unsettle any party’s justifiable reliance on the
prior state of the law or impair vested property rights.

B. The Mandate Rule

¶29 The Okelberrys resist the conclusion that the amended
version of the Dedication Statute applies in this case in part on
the ground that its application would violate the mandate rule.
They argue that ‚*t+he amendments to *the Dedication Statute+
purport to change the result in a pending case. Such an

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assumption of a core judicial function violates the separation of
powers doctrine inherent in the Utah Constitution.‛

¶30 Under the law-of-the-case doctrine, ‚a decision made on
an issue during one stage of a case is binding on successive
stages of the same litigation.‛ IHC Health Servs., Inc. v. D & K
Mgmt., Inc., 2008 UT 73, ¶ 26, 196 P.3d 588 (citation and internal
quotation marks omitted). And ‚a district court’s power to
reconsider decided issues is limited when the case has been
appealed and remanded.‛ Mid-America Pipeline Co. v. Four-Four,
Inc., 2009 UT 43, ¶ 13, 216 P.3d 352. ‚This aspect of [the] law of
the case doctrine is frequently referred to as the mandate rule.‛
Id. Under the mandate rule, ‚issues resolved by [an appellate
court] bind the trial court on remand, and generally bind this
court should the case return on appeal after remand.‛ Gildea v.
Guardian Title Co. of Utah, 2001 UT 75, ¶ 9, 31 P.3d 543. ‚Thus, the
decisions of an appellate court become the law of the case and
cannot be reconsidered on remand.‛ Mid-America Pipeline Co.,
2009 UT 43, ¶ 13.

¶31 However, the mandate rule is subject to an exception
‚when there has been an intervening change of controlling
authority.‛ Gildea, 2001 UT 75, ¶ 9 (citation and internal
quotation marks omitted). The Okelberrys argue that this
exception does not apply, because ‚the appellate decisions in
this case limited the scope of inquiry on remand to whether [the]
Okelberrys had performed an overt act to block use of the roads‛
to defeat the public dedication. ‚The trial court‛—they argue—
‚did not, therefore, have authority to conduct a wide-ranging
inquiry, but was required to focus solely on the issues framed by
this Court.‛

¶32 ‚*T+he lower court must implement both the letter and the
spirit of the mandate, taking into account the appellate court’s
opinion and the circumstances it embraces.‛ Utah Dep’t of Transp.
v. Ivers, 2009 UT 56, ¶ 12, 218 P.3d 583 (alteration in original)
(citation and internal quotation marks omitted). ‚The application

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of the mandate rule lacks the flexibility found in other branches
of the law of the case doctrine.‛ Thurston v. Box Elder County, 892
P.2d 1034, 1038 (Utah 1995). ‚The [trial] court may not reopen
the case to consider other issues or matters not included in the
mandate.‛ Johnson v. State, 235 S.W.3d 872, 875 (Ark. 2006). Thus,
‚[w]hen an appeals court vacates a judgment with narrowing
instructions which direct the district court to consider certain
issues, the district court does not have a mandate to reconsider
other issues except in extraordinary circumstances.‛ United States
v. Lynn, No. 93-5339, 1993 WL 460716, at *1 (4th Cir. Nov. 9,
1993) (per curiam); see also 5 Am. Jur. 2d Appellate Review § 740
(2007) (noting that the mandate rule ‚requires a lower court to
act on the mandate of an appellate court, without variation‛ and
that ‚a lower court cannot give any other or further relief
beyond the scope of the mandate‛). One such extraordinary
circumstance is ‚a dramatic change in controlling legal
authority.‛ United States v. Moore, 83 F.3d 1231, 1234 (10th Cir.
1996).

¶33 The Arizona Supreme Court has rejected an argument
similar to the one the Okelberrys raise here. See Jordan v. Jordan,
643 P.2d 1008 (Ariz. 1982). In Jordan, the court considered
‚whether a trial court may deviate from the mandate of an
appellate court because of an intervening change in controlling
law and, on remand, decide the case contrary to the instructions
contained in the mandate.‛ Id. at 1009. The parties to the case
sought dissolution of their marriage. Id. They owned property as
joint tenants with right of survivorship. Id. The legislature had
earlier amended the relevant statute to permit the trial court to
include joint tenancy property in the equitable division of
marital assets. Id. The trial court distributed the joint tenancy
property to the wife, and the husband appealed. Id. The Arizona
Court of Appeals reversed, concluding that the amendment to
the statute applied only prospectively and that therefore joint
tenancy property acquired before the amendment was not
subject to equitable division. Id. Before the trial court could
consider the case on remand, the legislature amended the statute

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again to give it retroactive operation over joint tenancy property
acquired before the first amendment. Id. at 1009–10. Despite the
court of appeals’ holding that the trial court lacked jurisdiction
over the joint tenancy property, the trial court again distributed
the joint tenancy property to the wife ‚in light of the change in
the statute.‛ Id. at 1010.

¶34 In interpreting the second amendment to the statute
permitting the trial court to make an equitable apportionment of
the joint tenancy property, the Arizona Supreme Court noted
that a trial court may deviate from an appellate mandate because
of an intervening change in controlling law:

[T]he law of the case doctrine is inapplicable where
the policy of the law has been changed, by
legislative enactment or decision of a higher court,
while the case is still pending resolution. In
reaching our decision, we do not depart from our
long-held rule that after decision on appeal and
remand the lower court is bound to follow the law
set forth in the appellate court’s opinion . . . . We
hold, however, that this general rule is subject to
the exception that the lower court may deviate
from the mandate and apply different law from
that specified by the appellate court where, while
the case is still pending, and in the interim between
the rendition and implementation of the mandate,
there has been a change in controlling law.

Id. at 1013–14 (internal quotation marks omitted).

¶35 Here, as in Jordan, the appellate mandate set forth in
Okelberry III, 2010 UT App 13, 226 P.3d 737, does not absolutely
bind the trial court, because ‚the policy of the law has been
changed . . . by legislative enactment . . . while the case [was] still
pending resolution,‛ see Jordan, 643 P.2d at 1013.

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¶36 The Okelberrys argue that the mandate rule compels the
trial court ‚to follow the instructions of the appellate courts‛:

[Okelberry III] unambiguously stated that ‚impact
or actual interference of public use of the roads‛ is
not relevant. The only issue before the trial court
was whether the gates were locked and the intent
of placing those locks. Under the mandate from the
appellate courts, whether persons were actually
prevented from traveling the roads was not
relevant. . . .

The trial court did not, therefore, have authority to
conduct a wide-ranging inquiry, but was required
to focus solely on the issues framed by this [c]ourt.

Were it not for the intervening amendment to the Dedication
Statute, we would agree with the Okelberrys. But in 2011, after
we remanded the case to the trial court but before the court had
the opportunity to consider additional evidence of the
Okelberrys’ intent in closing and locking the gates, the
legislature amended the Dedication Statute, to clarify the
statute’s scope in light of the supreme court’s decision in
Okelberry II. See Utah Code Ann. § 72-5-104(9)(b)(ii) (LexisNexis
Supp. 2011). The amended statute thus constitutes ‚a dramatic
change in the controlling legal authority.‛ Moore, 83 F.3d at 1234;
see also Jordan, 643 P.2d at 1014. We accordingly conclude that the
mandate rule does not prohibit the trial court from applying the
amended version of the Dedication Statute to this case.1

1. The Okelberrys warn of ‚the potential mischief, indeed, the
grave constitutional problems, that could arise if the Legislature
were to attempt to determine the outcome of a particular case by
passage of a law intended to accomplish such a purpose.‛ Foil v.
Ballinger, 601 P.2d 144, 151 (Utah 1979). But we do not see the
(continued…)

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¶37 Because we agree with Wasatch County’s contention that
the amended version of the Dedication Statute applies to this
dispute, we do not address its second contention that the trial
court’s findings of fact were insufficient under the standard set
forth in Okelberry II.

C. Continuous Use

¶38 Wasatch County next contends that if we conclude, as we
have, that the amended version of the Dedication Statute applies
retroactively, we should ‚overturn the *trial+ court’s findings
that the roads in this case were not dedicated to the public.‛
Wasatch County argues that the trial court conditionally—but
correctly—ruled that ‚if the statute did apply retroactively, then
all of the roads at issue in the case would be dedicated to the
public.‛ ‚We review questions of statutory interpretation for
correctness, affording no deference to the district court’s legal
conclusions.‛ Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50,
¶ 12, 267 P.3d 863 (citation and internal quotation marks
omitted). And ‚*w+hen reviewing a bench trial for sufficiency of
evidence, we must sustain the trial court’s judgment unless it is
against the clear weight of the evidence [presented at trial], or if
the appellate court otherwise reaches a definite and firm
conviction that a mistake has been made.‛ Kendall Ins., Inc. v.
R & R Group, Inc., 2008 UT App 235, ¶ 9, 189 P.3d 114 (second
alteration in original) (citation and internal quotation marks
omitted).

(…continued)
amendment as an attempt to determine the outcome of this case.
We see it as an attempt to clarify the statute’s original intended
meaning by referencing cases that have interpreted its meaning.
True, the amendment names those cases. But we have no reason
to believe the legislature sought to manipulate their outcomes.

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Wasatch County v. Okelberry

¶39 Under the amended version of the Dedication Statute, a
landowner can defeat public dedication by, among other
methods, interrupting the public’s continuous use of the roads:

(1)(a) A highway is dedicated and abandoned to
the use of the public when it has been continuously
used as a public thoroughfare for a period of ten
years.

....

(3)(a) Continuous use . . . is interrupted only when
the regularly established pattern and frequency of
public use for the given road has actually been
interrupted to a degree that reasonably puts the
traveling public on notice. . . .

Utah Code Ann. § 72-5-104 (LexisNexis Supp. 2011).

¶40 In the portion of its January 14, 2014 ‚Findings of Fact and
Conclusions of Law‛ discussing the amended version of the
Dedication Statute, the trial court correctly focused on whether
any actual interruption reasonably placed the traveling public on
notice that the Okelberrys sought to interrupt continuous use.
The court noted that if the amended version of the Dedication
Statute applied to this case, then the roads would be dedicated to
the public:

Clearly if the statute could be applied retroactively,
there has been significant testimony from Wasatch
County witnesses that they were not on notice that
the roads were not public roads as they never
encountered any interruption, and the roads would
be dedicated to the public use.

¶41 The trial court’s findings of fact support its conclusion. In
its March 6, 2013 memorandum decision, the trial court found
that Wasatch County produced fourteen witnesses who testified

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Wasatch County v. Okelberry

that ‚they had used the roads during the 1960s, 1970s, and 1980s
without encountering a locked gate.‛ The court noted that most
of Wasatch County’s witnesses ‚testified that they first
encountered locked gates in 1989 or the early 1990s‛ and that
while ‚*s+ome of the witnesses testified that they had seen closed
gates, . . . the gates were not locked and it did not impede their
travel.‛ One Okelberry witness testified that the Okelberrys
‚would lock the gates every year at the end of June when they
moved their sheep.‛ Another testified that the gates ‚were
locked to keep out the public so that sheep would not get out
onto the Forest Service property before July 1 of each year‛ and
that he saw ‚people go up to this locked gate and turn around‛
during that time. A third witness testified that ‚it was important
to keep the gates locked each year at these times so [the sheep]
would not go onto the Forest Service property too early.‛ Brian
Okelberry testified that ‚the purpose of locking the gates was to
keep people from going onto the property because they would
not close the gates, and the gates had to be secure to keep the
sheep in the right location.‛

¶42 From this testimony, the trial court found that ‚the gates
were not locked often enough to put the public on notice that the
roads were not for public use.‛ The trial court then concluded
that if the amended version of the Dedication Statute applied,
‚then the roads would be dedicated to the public.‛ The trial
court’s conclusion does not run ‚against the clear weight of the
evidence.‛ Kendall Ins., Inc., 2008 UT App 235, ¶ 9 (citation and
internal quotation marks omitted). First, even those Wasatch
County witnesses who recalled closed gates testified that the
gates ‚were not locked and it did not impede their travel.‛
Second, several witnesses testified that the Okelberrys closed
and locked the gates. But while the Okelberrys periodically
closed the roads, they closed the roads at regular intervals to
control livestock. These interruptions thus did not impair ‚the
regularly established pattern and frequency of public use for the
given road*s+.‛ Utah Code Ann. § 72-5-104(3)(a).

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Wasatch County v. Okelberry

¶43 In short, although it erroneously failed to apply it, the
trial court correctly interpreted the amended version of the
Dedication Statute, and sufficient evidence supported its
conclusion that under the amended version, the Okelberrys had
dedicated all of the roads at issue to public use. Moreover, the
Okelberrys have not argued on appeal that even if the amended
version of the Dedication Statute applies to this case, they would
nonetheless prevail. Accordingly, we agree with Wasatch
County that the Okelberrys dedicated the roads at issue in this
case to public use.

II. ‚Overt Act‛ Cross-Appeal

¶44 Finally, on cross-appeal the Okelberrys contend that the
trial court erred in failing to recognize that employing gates—
even unlocked gates—constitutes an overt act that interrupts
public use as a matter of law. ‚The presence of gates clearly
interrupts public use,‛ they maintain, because ‚*a+lthough
individuals may be able to open the gates and still use the roads,
the presence of those gates still requires the user to stop and
open the gates.‛ They argue that the ‚law therefore holds that
the maintenance of gates creates a presumption that the use was
permissive and therefore interrupted use of the road ‘as a public
thoroughfare.’‛

¶45 Utah courts have already considered this question and
have concluded that the presence of locked or unlocked gates
should be weighed as one of many factors that a court may
consider in determining whether public use was continuous as a
matter of law:

[T]he presence of obstructions or gates, open or
closed, unlocked or locked, has been treated as
only one of the many factors a trial court may
consider when determining if the public use was
continuous. Indeed, the Utah Supreme Court has
declined opportunities to rely solely on the

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Wasatch County v. Okelberry

presence of a gate, locked or unlocked, to affirm
trial courts’ determinations that roads have not
been dedicated to the public.

Okelberry I, 2006 UT App 473, ¶ 15, 153 P.3d 745 (citing Thomson
v. Condas, 493 P.2d 639, 640–41 (Utah 1972)), rev’d on other
grounds, 2008 UT 10, 179 P.3d 768. In fact, in Okelberry III, we
remanded the case on the ground that ‚the trial court failed to
make factual findings as to whether and when the Okelberrys
locked the gates.‛ 2010 UT App 13, ¶ 15, 226 P.3d 737 (citing
Okelberry II, 2008 UT 10, ¶ 19).

¶46 In Utah County v. Butler, our supreme court approved the
trial court’s conclusion that a property owner abandoned a road
and dedicated it to public use. 2008 UT 12, ¶ 29, 179 P.3d 775. In
reaching its conclusion, the trial court explained that ‚there have
historically been gates across the [r]oad for purposes unrelated
to obstruction of traffic.‛ Id. ¶ 25. ‚An unlocked gate is
consistent with this pattern and would not be considered to
violate the *public’s+ right-of-way . . . .‛ Id. (citation and internal
quotation marks omitted).

¶47 In short, Utah caselaw has considered and rejected the
Okelberrys’ contention that ‚the presence of gates clearly
interrupts public use.‛ Nothing the Okelberrys have presented
on appeal compels us to reconsider this settled law. Accordingly,
the Okelberrys’ cross-appeal fails.

CONCLUSION

¶48 That portion of the trial court’s judgment ruling that some
of the roads in question were not dedicated to the public is
reversed. The judgment of the trial court is in all other respects
affirmed.

20140397-CA 20 2015 UT App 192