S and W Hunting Ranch v. Fautin

2024 UT App 60

THE UTAH COURT OF APPEALS

S AND W HUNTING RANCH, LLC,
Appellee,
v.
DEE LYNN FAUTIN, WADE FAUTIN, CORY FAUTIN,
AND MOO DEE RANCH, LLC,
Appellants.

Opinion
No. 20220432-CA
Filed April 25, 2024

Sixth District Court, Junction Department
The Honorable Brody Keisel
No. 160600008

Lewis P. Reece, Jeffrey R. Miles, and Devon J.
Herrmann, Attorneys for Appellants
Ben W. Lieberman, Attorney for Appellee

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

MORTENSEN, Judge:

¶1 Deep in the Tushar Mountains, within Fish Lake National
Forest, a dirt road meanders in a southwesterly direction across
property that S and W Hunting Ranch, LLC (S&W) purchased in
2016. Not long after the purchase, S&W shut off access to the
property, including to a small group of folks who claimed to have
been using the dirt road for decades—a father, Dee Lynn Fautin;
his two sons, Wade Fautin and Cory Fautin; and their entity, Moo
Dee Ranch, LLC (collectively, Fautins; individually by given
name). S&W filed an action to quiet title and enforce its right of
exclusion. The Fautins countersued on a number of theories,
including that the road had become a public road pursuant to
S&W v. Fautin

Utah’s dedication statute (Dedication Statute), see Utah Code § 72-
5-104, or, alternatively, that the Fautins had obtained a
prescriptive easement to use the road. After a multi-day bench
trial, the district court rejected the Fautins’ claims and quieted title
in S&W’s favor. The Fautins appeal, raising several claims, all of
which we reject.

BACKGROUND

¶2 The Fautins’ appeal raises multiple issues surrounding the
interpretation of Utah law and the district court’s application of
the law to the established facts. In their appeal, the Fautins do not
challenge any of the district court’s factual findings as clearly
erroneous. See Ashby v. State, 2023 UT 19, ¶ 77, 535 P.3d 828 (“We
defer to the factual findings of the [district] court unless the
findings are clearly erroneous.” (cleaned up)). Accordingly, what
follows is a factual recitation taken, as relevant for the purposes
of the appeal, from the district court’s findings. The statements in
quotes are therefore quoting the district court’s findings.

¶3 This case involves property (the Property) that S&W
purchased via a special warranty deed in June 2016. The Property
consists of a series of patented mining claims in Piute County,
Utah, just west of the town of Marysvale. 1 These mining claims
0F

date back over a century; most of them were established in 1915,
with one going back to 1889. Prior to S&W’s purchase of the

1. “A patented mining claim is one in which the government has
passed its title to the claimant, giving [the claimant] exclusive title
to the locatable minerals, and, in most cases, the surface and all
resources.” Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993). “A
mining claimant receives a ‘patent,’ that is, an official document
issued by the United States attesting that fee title to the land is in
the private owner. A patented mining claim is a property right in
the full sense.” Reoforce, Inc. v. United States, 853 F.3d 1249, 1256
(Fed. Cir. 2017) (cleaned up).

20220432-CA 2 2024 UT App 60
S&W v. Fautin

Property, it belonged to the Magnus family from 1967 to 2016,
which had acquired the Property through a United States
marshal’s deed that arose from litigation between a Magnus
family member and Lucy DeLuke, along with other parties.

¶4 Shortly after the purchase, S&W filed a complaint seeking
a declaratory judgment to quiet title to the Property, including a
segment of a road (the Road) that passes through the Property.
The Fautins filed a counterclaim seeking a declaratory judgment
that all members of the public, including themselves, enjoyed the
right to use the Road under the Dedication Statute. See Utah Code
§ 72-5-104(2) (“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 10 years.”). In addition, and in the
alternative, the Fautins sought declaratory judgment that they
had a prescriptive easement to use the Road, even if the general
public did not.

¶5 Central to the present dispute was the condition, location,
and historical use of the Road, which was constructed to link the
now-abandoned mining operations and which is currently used
to access the Property and surrounding area. It meanders through
the Property, beginning in the northeast portion and traversing it
in a generally westerly direction. In several locations, the Road
exits and then re-enters the Property. “Significant testimony was
presented at trial attempting to establish the origin and history of
the . . . Road,” including “various surveys and aerial photographs
with competing expert testimony” and witness testimony, which
we summarize here from the district court’s findings of fact.

Historical Evidence

¶6 A 1973 aerial photograph provided the “clearest
representation of the . . . Road as it presently exists.” The court
described the Road as beginning in the upper right corner of the
Property as depicted in the photograph, having a number of
switchbacks, and looping back up into the tree line of the

20220432-CA 3 2024 UT App 60
S&W v. Fautin

Property. With this present route of the Road established, the
court received evidence of the Road as it had existed over the
years.

¶7 An 1897 map of the area showed several mines with “a line
that [continued] in a general eastward direction that could
represent a road or trail.”

¶8 A 1910 map depicted the Property, surrounding areas, and
a trail purported to be part of the Road. Along with the map itself,
competing expert witness testimony was offered about the trail as
depicted therein. The map showed various mining claims on the
Property and featured a dotted line labeled “Copper Belt Trail.”
However, the dotted line was “quite difficult to follow,” and
“annotations on the map [made] it somewhat unclear if the dots”
were “meant to be a continuation of the trail or another
unidentified or unexplained mark on the map.” The 1910 map did
“not show specific characteristics of the . . . Road in its present
form, such as the switchbacks,” a “sharp curvature,” and “what
happens to the [Road] outside of the Property.”

¶9 A 1937 map showed “a trail existing in the area of the
Property.” But the labeling on the map was unclear about the
identification of the trail in question.

¶10 A 1943 photograph, taken at a slightly different angle, was
of lower quality and more pixelated than the other photographs
in evidence. While this photograph showed “white lines,
presumably a road or trail,” other elements of the Road, such as
the switchbacks, were not clearly evident in it.

¶11 A 1953 photograph shows the Road “in substantially the
same location” as depicted in the 1973 photograph and as it
currently exists.

¶12 The Fautins’ expert stated that the 1910 map depicted the
“general location” of the Road and opined that “other than

20220432-CA 4 2024 UT App 60
S&W v. Fautin

improvements such as switchbacks,” the map showed the “same
road” that had historically been used to access the mining camps.
The Fautins’ expert also testified the improvements to the Road
were “likely” made to address safety and grade concerns. S&W’s
expert noted that there were “several distortions” on the 1910 map
attributable to “printing or copying errors.”

¶13 In addition to the maps, photographs, and expert
testimony, two fact witnesses testified about the history of the
Road. Witness 1, who was born in 1934, recollected that the Road
was built between 1946 and 1948, but he clarified that he was
uncertain if the Road was actually built during those years or if it
was just improved during that time. 2 Witness 2—a former
1F

archeologist with the National Forest Service—provided
testimony about the use of the Property during the mining days
in the late nineteenth century, but he “did not provide any
testimony about the existence of the . . . Road prior to 1900 or
otherwise.”

¶14 Considering this historical evidence, the district court
concluded that “[g]iven the various maps and photographs
received into evidence, it would be nearly impossible for a fact
finder to state that the . . . Road has been entirely unchanged over
the last 150 years.” The court compared the current representation
of the Road in the 1973 photograph to earlier sources and stated
that the 1897 map did not provide “clear and convincing evidence
showing that the . . . Road existed in a form that is substantially
unchanged from its present condition and location.” The court
further concluded that while the trail depicted in the 1910 map
crossed the Property in a “similar direction” as the Road, the court
“would be required to make speculations” that the trail depicted
in the 1910 map followed “the same course as the . . . Road
presently follows.” The court also found that while the Fautins’

2. Unless indicated otherwise, the witnesses, whom we identify
by numbers, were local residents.

20220432-CA 5 2024 UT App 60
S&W v. Fautin

expert “provided a thoughtful approach to what he observed” on
the 1910 map, his “testimony often required the [c]ourt to infer or
use supposition to reach his same conclusions.” Thus, the court
determined that it could not “find by clear and convincing
evidence that the . . . Road existed in 1910 in a location and
condition that is substantially unchanged from its present form.”
Furthermore, the court determined that the 1937 map was not of
any more help than the 1910 map in that it required the court “to
speculate” to find that the Road existed in 1937 “in a location and
condition that is substantially unchanged from its present form.”
Accordingly, the court stated that the 1937 map did “not meet the
clear and convincing evidence standard.” Finally, the court found
that the 1943 photograph, while it provided “sufficient
landmarks” to allow one to “speculate” that the Road “existed in
a similar configuration and location as it does today,” did “not
rise to the clear and convincing standard.”

The Road’s Use and Access

1. Gates

¶15 Testimony and photographic evidence were also offered as
proof that two gates limited access to the Road. These two gates
are located on either side of an abandoned mine that marks the
eastern edge of the Property.

¶16 The first gate, located on National Forest Service land north
of the Property, is a chain-link fence featuring three prominent
signs warning against trespassing, stating that trespassers would
be prosecuted and that security cameras were in use. Dee Lynn
Fautin testified that the Fautins put the signs on the gate. He
explained that the gate had been there since the 1950s or 1960s and
was built by Lucy DeLuke’s employees. Dee Lynn specified that
the gate was sometimes open because the locks were broken but
had generally been locked since first installed, that it had been
open for “two or three years” in the 1970s, and that it was torn
down around 2012 and then repaired by his nephew.

20220432-CA 6 2024 UT App 60
S&W v. Fautin

¶17 Wade Fautin testified that the first gate was usually locked
and that he would relock it when he used it. He also testified that
the Fautins repaired the gate when it was damaged “because they
wanted to keep the public off” the Road and to protect their
“belongings beyond the gate.” He further stated that the Fautins
“took control over and spearheaded the maintenance” of the gate
in the mid 1980s.

¶18 Cory Fautin testified that he had helped reinforce the first
gate, added a barrier to the side, and posted the signs on it. He
said the gate was usually locked and that its purpose was “to
exclude the public from using the . . . Road and also to protect [the
Fautins’] belongings.”

¶19 Witness 3 testified that the “gate was always locked when
he visited the Property for several years in the 1980s.” And
Witness 4 testified that there were “a few years in the 1980s or
1990s . . . when no gate or cable blocked access to the Property.”

¶20 The second gate, located to the south of the first gate but
on the Property, was connected to a post on one side and cabled
to a tree on the other. It too featured warning signs stating “no
trespassing,” “private property,” and that security cameras were
in use. Dee Lynn said that he, his sons, and an acquaintance
installed this gate in the 1980s or 1990s; that it was “consistently
locked”; and that the Fautins replaced damaged or broken locks.
Cory testified that the Fautins installed the second gate, noting
that they had done so “without giving notice to the Forest Service,
[Piute] County, or the property owners.” He said the purpose of
the second gate was to prevent his cows from wandering.

2. Locks

¶21 In addition to the presence of the two gates, the court heard
testimony from several witnesses “about the locks on the gates
and the possession of keys for these locks.”

20220432-CA 7 2024 UT App 60
S&W v. Fautin

¶22 “Dee Lynn testified that he and his family would often put
new locks” on the two gates “when the old locks were broken off”;
that he would exchange the lock keys with DeLuke from the early
1970s on; that DeLuke’s friends would go to her for keys; and that
he did not know if DeLuke “acted on her own behalf or on behalf
of Rollo Peterson,” an individual Dee Lynn “assumed had a
relationship with the Property owner.” 3 And after DeLuke died,
2F

Dee Lynn exchanged keys with Peterson.

¶23 Wade testified that he borrowed keys for the locks from his
father until he obtained his own keys. In addition, Wade said that
there were “hidden keys . . . near the gates . . . that the Fautins, but
not the public at large, knew about.” He also said that the Fautins
would give DeLuke a new key whenever they replaced a lock on
the gate.

¶24 Witness 1, Witness 4, and Witness 5 testified that whenever
they used the Road, they would get a key from Dee Lynn, DeLuke,
or Peterson. In particular, Witness 5 testified that the “person who
possessed the key decided who else used the key, and that many
people who could not obtain keys ‘were hostile towards’ those
who had access to a key,” with his impression being that “the
general reputation in Marysvale was that a person needed
permission to go on the . . . Road.”

3. Use of the Road

¶25 Several witnesses testified about their use of the Road over
the years.

¶26 Dee Lynn said that he first used the Road in 1949 when he
was about eight years old and that he “continuously used” the
Road “as often as he found convenient or necessary” until S&W

3. In his deposition, Dee Lynn indicated that Peterson was an
individual “who sort of took on [DeLuke’s] role as manager” of
the Property.

20220432-CA 8 2024 UT App 60
S&W v. Fautin

purchased the Property and told him he could not use it. He
testified that “members of the public” did “not freely” travel “up
and down the road” after the gate was installed. However, he
“contradicted this testimony by stating that from 2006 to 2016,
members of the public traveled” the Road by going around the
first gate. He recalled “sometimes” seeing members of the public
on the Property. Dee Lynn further stated that he “did not believe”
the Road was private “because he and his family used it,” but he
also admitted that DeLuke and Peterson gave him permission to
use the Road. In a deposition, Dee Lynn also indicated that even
though “he wasn’t entirely sure who owned what,” he believed
that DeLuke was “acting as owner or manager” of the Property
and that when “people were allowed to travel on the . . . Road,
they received permission” from DeLuke.

¶27 Witness 4 and Witness 6 testified much the same about
needing to obtain keys from DeLuke. And evidence was
presented that DeLuke signed her name as “agent” for work done
on the Road at the request of the Magnuses.

¶28 Wade remembered visiting the Road in the late 1970s when
he was “very young.” He testified that he “continuously” used the
Road “as often as he found convenient or necessary” until S&W
purchased the Property and that “[n]o one except [S&W] told him
he could not use the . . . Road.” He also testified that he would “go
around” the first gate when it was locked. He said he was
“uncertain” about DeLuke’s “role in the ownership or
management of the Property but he understood that she had hard
feelings towards the Magnuses.”

¶29 Cory testified that he first used the Road in the mid 1970s
and had continued to do so “at least annually.” He recalled that
he “continuously used” the Road “as often as he found convenient
or necessary” until S&W purchased the Property and told him to
stop. He further stated that “[n]o one except [S&W] told him he
could not use the . . . Road.” He also testified that the locked gates

20220432-CA 9 2024 UT App 60
S&W v. Fautin

on the Road afforded him a protected place he could go as a
teenager “to avoid detection while drinking beer.” He said he
“never believed” the Road was private, but he did not “know who
owned” it and never gave it much thought. He did say that
DeLuke “claimed it was ‘her mountain,’ but he did not investigate
her actual ownership.” Cory testified that he wanted to “keep
others off” the Road “so that his belongings behind the gate
wouldn’t disappear.” Cory also testified that he at times saw other
people on the Property engaged in hunting, camping,
photography, stargazing, and cutting down Christmas trees.

¶30 Witness 3 testified that beginning in 1981, he and family
members used the Road annually for four years to access the
Property for hunting. This witness stated that “he and members
of the hunting party who could use the . . . Road and hunt behind
the locked gates ‘felt like kings.’” When Witness 3 returned to
hunt in 1998, he accessed the Property using “alternate trails”
rather than the Road. He noted that other hunters used these trails
rather than the Road to get to the area around the Property.

¶31 Witness 1 testified to traveling on the Road several times in
1952, 1958, and 1961. This witness testified that he would ask
Peterson for permission to hunt on the Property and that “it was
common knowledge that you needed to ask . . . Peterson to access
the Property through the gate,” a practice he believed was
intended to limit the number of hunters who could access the
Property.

¶32 Witness 5 testified that the use of the Road “depended on
who had the key,” which created hard feeling about access to the
Road and the Property in the community. And Witness 7 testified
that visits to the Property using the Road were limited due to a
lack of “permission to do so.”

¶33 In weighing this testimony, the district court concluded
that DeLuke continued to work as an agent for the Magnuses after
they had acquired the Property, that those wishing to use the

20220432-CA 10 2024 UT App 60
S&W v. Fautin

Property would go to DeLuke “to get keys to access” the Road,
and that the “general reputation was that you needed . . .
DeLuke’s permission” to use the Road.

The District Court’s Decision

¶34 The district court determined that the Fautins’
counterclaims for a dedicated road or a prescriptive easement
failed. 4 As a result, the district court quieted title in S&W.
3F

1. Dedication Claim

¶35 Regarding their counterclaim that the Road was a public
thoroughfare dedicated to public use pursuant to the Dedication
Statute, the court acknowledged that “the Fautins, who are a
subset of the general public, continuously traveled” the Road,
along with “other members of the general public when invited by
the Fautins or” when DeLuke granted them permission to use it.
The court also acknowledged that “sometimes . . . uninvited
members of the public” used the Property for various activities.
But the court nevertheless found that “DeLuke and the Fautins
took extensive measures to prevent the general public from
traveling” on the Road, most notably “constructing, maintaining,
and locking the gates” to block the Road. And the court
determined that the Fautins “fastidiously kept the . . . Road
behind well-maintained, locked gates for over 50 years” and that
they “took these actions for the express purpose of keeping the
general public (outside of their approved circle of friends and
family) from using” the Road.

¶36 The court rejected the suggestion that members of the
public could freely circumvent the gates, most notably because

4. The district court also determined that the Fautins’ other
counterclaims, which are unnecessary to discuss because they are
not challenged on appeal, failed.

20220432-CA 11 2024 UT App 60
S&W v. Fautin

the Fautins continued in their efforts to maintain the gates and
repair the locks:

At no point did [the Fautins] see enough members
of the public using the . . . Road that they decided
these efforts were futile and should be abandoned—
that the gates should be removed or that keys
should be freely distributed. Now, faced with the
prospect of losing their own ability to use the . . .
Road, [the Fautins] imply that the 50 years of effort
spent keeping the . . . Road exclusive was futile
because the [Road] was open to any member of the
general public who desired to use it as frequently as
that member found necessary or convenient. This
suggestion simply does not align with the time and
effort that [the Fautins] spent asking for keys from
. . . DeLuke, exchanging keys among themselves
and friends, repairing gates, making sure to close
gates behind them when using the . . . Road, and
replacing locks. Nor does it square with testimony
about the general reputation that you needed
permission from . . . DeLuke to access the [Road] or
[the Fautins’] expressed intent to keep members of
the public from using the [Road].

¶37 Based on the testimony and evidence, the court concluded
that while the Fautins, DeLuke, and “specific invitees
continuously used the . . . Road as members of the public for at least
the ten-year continuous period required” by the Dedication
Statute, “these members of the public prevented the public, as
interpreted by the case law applying the Dedication Statute, from
accessing the . . . Road as frequently as they found necessary or
convenient.” (Emphasis in original.) Thus, the court determined
the Fautins “did not meet their burden of proof to show . . . by
clear and convincing evidence” that the Road had been dedicated
to public use.

20220432-CA 12 2024 UT App 60
S&W v. Fautin

2. Prescriptive Easement Claim

¶38 Alternatively, the Fautins argued that they possessed a
prescriptive easement in gross allowing them to use the Road. 5 4F

But the district court concluded that Dee Lynn never had an
“adverse mental state” when using the Road. Specifically, the
court determined that even though Dee Lynn “testified that he did
not really know who owned what,” he also testified that DeLuke
“allowed” the Fautins to use the Road. Thus, the court concluded
that Dee Lynn’s use of the Road “commenced” when DeLuke was
“the owner and [Dee Lynn] was acting with actual or perceived
permission.” Moreover, Dee Lynn testified that he “knew” when
he continued to use the Road that he had “Peterson’s permission
to use [it] whenever he wanted.” Thus, “Dee Lynn did not present
any testimony to suggest that he believed his use of the . . . Road
was adverse.”

¶39 Regarding Cory, the court noted that he “testified that he
never believed that it was a private road,” that he “didn’t know
who owned the road,” and that he “never gave much thought as
to who owned the road when using it.” Moreover, Cory admitted
that “nobody except [S&W] ever told him he could not use” the
Road. Based on this testimony, the court concluded that Cory
“never had an adverse mental state” when using the Road—

5. An easement in gross is an “easement benefiting a particular
person and not a particular piece of land. The beneficiary need
not, and [usually] does not, own any land adjoining the servient
estate.” Easement, Black’s Law Dictionary (11th ed. 2019); see also
Dansie v. Hi Country Estates Homeowners Ass’n, 2004 UT App 149,
¶ 11, 92 P.3d 162 (“An easement in gross is a mere personal
interest in the real estate of another, and is not assignable or
inheritable. It dies with the person, and it is so exclusively
personal that the owner by right cannot take another person in
company with him.” (cleaned up)).

20220432-CA 13 2024 UT App 60
S&W v. Fautin

apparently because he could not really have an adverse mental
state if he believed the Road was not private.

¶40 And as to Wade, the court observed that he believed he
could use the Road “without permission” because the Fautins
“had a cabin up there when he was a child.” Wade also testified
that “DeLuke knew he had been on the Property and that she
never told him that he could not use” the Road. The only evidence
that Wade presented suggesting that he believed his use of the
Road to be adverse was “circumventing gates if they were locked
and he did not have a key.” But the court determined this practice
was “more out of convenience than an act meant to controvert the
Property owner.”

¶41 Thus, having concluded that none of the Fautins’ uses of
the Road was “continuously adverse for the statutory period,” the
court determined that the prescriptive easement in gross
counterclaim failed.

¶42 After determining that all the Fautins’ counterclaims
asserting their right to use the Road had failed, the district court
ordered that S&W was entitled to a declaratory judgment of quiet
title to the Road and the Property. The Fautins appeal.

ISSUES AND STANDARDS OF REVIEW

¶43 The Fautins first contend that the district court erred when
it determined that there had been no public dedication of the
Road. Relatedly, the Fautins claim the district court did not
properly analyze evidence of public use of the Road prior to 1953.
In challenging the district court’s decision, the Fautins do “not
dispute the court’s factual findings.” State v. Clark, 2014 UT App
56, ¶ 43, 322 P.3d 761, cert. denied, 333 P.3d 365 (Utah 2014).
Accordingly, we review the court’s ultimate determination about
public dedication “as a matter of law and defer to the [district]
court’s fact-finding role by viewing the facts in the light most

20220432-CA 14 2024 UT App 60
S&W v. Fautin

favorable to the [district] court’s decision to admit.” Id. ¶ 43
(cleaned up); see also Settlers Landing, LLC v. West Haven Special
Service Dist., 2015 UT App 54, ¶ 13, 346 P.3d 684 (stating that
where a district court supports its conclusions “with thorough
factual findings” and an appellant “has failed to challenge these
findings,” we “defer to the court’s findings”). Moreover,
“whether the facts of a case satisfy the requirements of the
Dedication Statute is a mixed question of fact and law that
involves various and complex facts, evidentiary resolutions, and
credibility determinations. An appellate court therefore reviews a
[district] court’s decision regarding whether a public highway has
been established under the Dedication Statute for correctness but
grants the court significant discretion in its application of the facts
to the statute.” Utah County v. Butler, 2008 UT 12, ¶ 9, 179 P.3d 775
(cleaned up).

¶44 The Fautins next assert that the court erred in determining
that they did not have a prescriptive easement to use the Road.
“In determining whether a prescriptive easement exists, a district
court must make a number of factual findings regarding the
duration and nature of the easement’s use. The court must also
correctly identify the legal standard governing the creation of a
prescriptive easement.” SRB Inv. Co. v. Spencer, 2020 UT 23, ¶ 6,
463 P.3d 654. Accordingly, “we review the district court’s
conclusions regarding the legal standard for correctness. And we
review the court’s factual findings, including how the court
applied those findings to the correct legal standard, for an abuse
of discretion.” Id. (cleaned up).

ANALYSIS

I. Dedication

¶45 The Fautins argue that the district court erred in
interpreting and applying the Dedication Statute when it
determined there had been no public dedication of the Road. The

20220432-CA 15 2024 UT App 60
S&W v. Fautin

gist of their argument is that the Road was used by the Fautins,
DeLuke, and a few invitees over many years and that this group
of people was “the public,” thus meeting the requirements of the
Dedication Statute. The Fautins relatedly argue that the district
court ignored clear and convincing evidence and so failed to
properly analyze the historical route and use of the Road prior to
1953—an analysis that they argue would have supported
historical public use of the Road. We address each contention in
turn.

A. Current Public Use of the Road

¶46 The Dedication Statute states that 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 10
years.” Utah Code § 72-5-104(2). And the “requirement of
continuous use [of a highway, street, or road as a public
thoroughfare] is satisfied if the use is as frequent as the public
finds convenient or necessary and may be seasonal or follow some
other pattern.” Id. § 72-5-104(3). 6
5F

¶47 The Fautins assert that the district court “expressly found”
that the public had used the Road for ten continuous years as
required by the Dedication Statute. They base this argument on

6. Although the briefing at times touches on the issue of
interruption of continuous use, see Utah Code § 72-5-104(4), this
interruption—as the district court concluded—becomes relevant
only once dedication as a public thoroughfare has been
established. After all, there can be no interruption of use if use of
a road as a public thoroughfare has not been established; in that
situation, there’s simply nothing to interrupt. And the Fautins
bore the burden of proof on the issue of continuous use. Id. § 72-
5-104(7)(a). Because we affirm the district court’s decision on
continuous use and dedication, we need not address the issue of
interruption.

20220432-CA 16 2024 UT App 60
S&W v. Fautin

this snippet from the court’s findings: “Ultimately, the [c]ourt
finds that [the Fautins], . . . DeLuke, and specific invitees
continuously used the . . . Road as members of the public for at least
the ten-year continuous period required for dedication under the
statute.” (Emphasis in original.) And since this finding is
unchallenged, the Fautins argue that the statutory requirements
for dedication are satisfied.

¶48 However, this reading of the district court’s findings is
incomplete. After the sentence about the Fautins and their cohorts
using the Road as “members of the public,” the court went on to say
in the very next sentence, “However, these members of the public
prevented the public, as interpreted by the case law applying the
Dedication Statute, from accessing the . . . Road as frequently as
they found necessary or convenient.” (Emphasis in original.)
Though the district court could have been more clear in its choice
of words, it was in actuality drawing a contrast between
“members of the public” and “the public,” as evidenced not only
by the obvious meaning of the two sentences but by the fact that
the court italicized “members of the public” and “the public.” This
leads us to the inevitable conclusion that the court was not
equating, but instead distinguishing, the two terms. Thus, it is
clear that “members of the public” was not the same as “the
public” in the court’s ruling. In other words, the court was saying
that if certain “members of the public” restrict access in order to
frustrate the use of a road by the rest of “the public,” then the
conditions of the Dedication Statute are not satisfied. Read in
context, the district court’s ultimate determination was that the
Road was not open to the general public.

¶49 Citing AWINC Corp. v. Simonsen, 2005 UT App 168, 112
P.3d 1228, the Fautins resist this interpretation of the district
court’s findings by asserting that the word “public” does not
mean “a great many persons.” See id. ¶ 11 (“The Utah Supreme
Court has determined that continuous use of a road exists when
the public, even though not consisting of a great many persons,

20220432-CA 17 2024 UT App 60
S&W v. Fautin

made a continuous and uninterrupted use not necessarily every
day, but as often as they found it convenient or necessary.”
(cleaned up)).

¶50 We are not persuaded. While “the public” does not
necessarily have to connote a great many persons, it also does not
mean a small group of “members of the public” who actively try
to prevent everyone outside their group from using the
thoroughfare in question. Thus, that the court called the Fautin
cohort “members of the public” is of no import in the context of
the court’s complete factual findings. After all, whenever anyone
uses a private road, it could be said that “members of the public”
are using the road. But the statute doesn’t require use by just an
exclusive club consisting of select “members of the public,” rather
it requires continuous use by “the public” of a road, highway, or
street “as a public thoroughfare” for ten years. Utah Code § 72-5-
104(2). And continuous use as a public thoroughfare means use
“as frequent[ly] as the public finds convenient or necessary.” Id.
§ 72-5-104(3). Thus, the use by “members of the public” is not the
only element of the statute. It also requires “the public” to have
continuously used the thoroughfare as frequently as it found
convenient or necessary. Indeed, our supreme court followed this
line of thought in Boyer v. Clark, 326 P.2d 107 (Utah 1958),
reasoning that even though the public does not have to consist of
“a great many persons,” those members of the public must be able
to access the road as frequently and conveniently as they wish to
do so, see id. at 109; see also AWINC, 2005 UT App 168, ¶ 11.

¶51 Here, we find no error in the district court’s conclusions.
The public was prevented—by the Fautins themselves at times—
from using the Road as a public thoroughfare by locked gates and
by the understanding that permission was required to use it. See
Wasatch County v. Okelberry, 2008 UT 10, ¶ 15, 179 P.3d 768 (“[A]n
overt act intended to and reasonably calculated to interrupt use of
a road as a public thoroughfare . . . simply precludes a finding of
continuous use.”); see also Campbell v. Box Elder County, 962 P.2d

20220432-CA 18 2024 UT App 60
S&W v. Fautin

806, 809 (Utah Ct. App. 1998) (concluding that permissive use
with devices such as locked gates precludes “dedication as a
public thoroughfare”). So, while some “members of the public”
(namely, the Fautin cohort) used the Road, they did not use it as
a public thoroughfare. Here, the district court found that certain
“members of the public” had prevented the rest of “the public”
from using the Road as frequently as the public found convenient
or necessary. As the district court’s unchallenged findings
establish, the Fautins actively prevented the Road from being
used as a public thoroughfare by blocking the public’s access to
use the Road when members of the public wanted to use it.
Accordingly, the district court did not err by concluding that the
use of the Road did not meet the statutory requirements for public
dedication.

B. Analysis of Public Use of the Road Prior to 1953

¶52 The Fautins relatedly argue that the district court failed to
analyze the “open and free use” of the Road prior to 1953 and,
consequently, that the court clearly erred when it concluded that
there was not clear and convincing evidence of use. 7 The reason
6F

that this analysis matters, the Fautins argue, is that it provided
unequivocal and uncontradicted support for their position that
the “practical character” of the Road has not changed “since at
least 1910.” In contrast, S&W argues that the district court’s
findings regarding the pre-1953 existence and nature of the Road
were not clearly erroneous because extensive evidence was
presented at trial to support the court’s findings: “The parties and

7. On this aspect of the issue, the Fautins state that they “challenge
. . . the [district] court’s finding[] . . . that the Fautins produced no
clear and convincing evidence of the existence of the [Road] prior
to 1953.” Even given this assertion, the Fautins still do not
challenge the factual finding but instead challenge the court’s
weighing of the evidence presented on the historical use of the
Road.

20220432-CA 19 2024 UT App 60
S&W v. Fautin

the [district] court examined map-after-map and photo-after-
photo ad nauseam during the trial with fact witnesses, expert
witnesses and closing arguments. The old maps and photos were
unclear until 1953. Testimony from the witnesses was unclear.
Even the Fautins’ expert couched his opinions as what he felt was
‘likely’ as opposed to clear and convincing and made various
assumptions to get from point to point.”

¶53 We agree with S&W. The district court devoted substantial
time to reviewing the historical use and route of the Road. It
looked at the 1897 map, the 1910 map, the 1937 map, the 1943
photograph, and other evidence, including extensive expert
testimony. The court simply did not find the evidence the Fautins
presented persuasive in showing that the Road existed and was
used by the public for at least ten years in its present condition
prior to 1953.

¶54 The Fautins argue that the district court should have been
swayed by what they characterize as “clear and convincing
evidence” about the pre-1953 condition of the Road. But the court
was not convinced. And in our view, the court did not abuse its
discretion in so viewing the evidence. “The mere fact that we
might have reached a different result when looking at the same
evidence will not justify setting the findings aside.” State v.
Goddard, 2021 UT App 124, ¶ 12, 501 P.3d 1188 (cleaned up), cert.
denied, 505 P.3d 55 (Utah 2022). And here, the evidence was, at
best, disputed and unclear as to the existence and route of the
Road before 1953.

¶55 Moreover, even if the Road existed in its present state
before 1953, the Fautins did not present convincing evidence that
the Road was open to public use or that the public in fact used it
for a ten-year period. On the contrary, there was evidence of gates
and barriers. In other words, even if the Road did exist in its
present route before 1953, the Fautins presented scant evidence—
apart from speculation—that the public (as opposed to private

20220432-CA 20 2024 UT App 60
S&W v. Fautin

mining operations) used the Road in those early days. In the
absence of contrary evidence, the court would have been left to
speculate about the public’s use of the Road during the mining
days.

¶56 In sum, we see no error in the court’s conclusion that the
Fautins failed to meet their burden of proof on their dedication
counterclaim, either as it concerned the Fautins’ use of the Road
or the use of the Road before 1953.

II. Prescriptive Easement

¶57 The Fautins next argue that the district court erred when it
determined that they did not have the adverse mental state
necessary to support a prescriptive easement. See Van Denburgh v.
Sweeney Land Co., 2013 UT App 265, ¶ 3, 315 P.3d 1058 (“To
establish a prescriptive easement, a party must show, by clear and
convincing evidence, that its use of the area in question has been
(1) open, (2) notorious, (3) adverse, and (4) continuous for at least
20 years. Once a claimant has shown an open and continuous use
of the land . . . , the use will be presumed to have been adverse.
The burden then shifts to the landowner opposing the easement
to establish that the use was initially permissive.” (cleaned up)).

¶58 The thrust of the Fautins’ argument is that the Fautins must
have possessed an adverse mental state when using the Road
because (1) the Magnuses never gave permission to the Fautins to
use the Road and (2) the Fautins didn’t seem to care who owned
the Road. The Fautins argue that the district court should have
looked at these two facts and concluded that the Fautins would
have used the Road in any case: “The fact that the Fautins blew
through the gates when they did not have keys, believed they had
rights to use the road independent of what the landowner said or
did not say, and did not know or care who actually owned the
road, shows disregard for, not submission to, the will and rights
of the landowner, despite any lack of controversy.” In other
words, the Fautins argue that the district court erred when it said

20220432-CA 21 2024 UT App 60
S&W v. Fautin

there were no acts “meant to controvert” the owner. Instead, the
Fautins assert that the court should have construed the evidence
to conclude that the Fautins never submitted to the landowner in
their use of the Road. See Harrison v. SPAH Family Ltd., 2020 UT
22, ¶ 31, 466 P.3d 107 (“[I]t is the prescriptive user’s submission to
the landowner that interrupts the prescriptive period—not the
owner’s grant of permission.”). Since, in the Fautins’ view, there
was no evidence of submission, the Fautins argue that the court
should have found an adverse mental state sufficient to support a
prescriptive easement.

¶59 “In Utah, a prescriptive easement is established where the
use of another’s land was open, continuous, and adverse under a
claim of right for a period of twenty years.” Id. ¶ 28 (cleaned up).
Our supreme court has further explained that “there are two
aspects to the requirement that a prescriptive use be continued for
the prescriptive period: one mental, the other physical.” Id. ¶ 29
(cleaned up). The physical aspect of continuous use—about which
there is no dispute here insofar as it concerns the Fautins’
prescriptive easement claim—“requires that the prescriptive user
actually and continually use the easement throughout the
prescriptive period.” Id. On the other hand, “the mental aspect
requires that the prescriptive user remain in an adverse posture
to the holder of the servient estate throughout the prescriptive
period. So where the user submits to the title of the possessor, or
abandons the adverse claim under which the use is made, there is
a break in the continuity of adverse use.” Id. (cleaned up). And “a
landowner’s grant of permission to the prescriptive user will not
work an interruption unless the user submits to the title of the
landowner by accepting the license offered. So it is the
prescriptive user’s submission to the landowner that interrupts
the prescriptive period—not the owner’s grant of permission.” Id.
¶ 31 (cleaned up). Citing this articulation, the Fautins argue that
they had an adverse posture because they never submitted to the
landowner.

20220432-CA 22 2024 UT App 60
S&W v. Fautin

¶60 We are unpersuaded by the Fautins’ argument that the
district court erred in interpreting and applying Harrison v. SPAH
Family Ltd., 2020 UT 22, 466 P.3d 107. “[W]here there is
contradictory testimony regarding whether a prescriptive user
accepted a landowner’s permission, the fact finder should weigh
the credibility of the witnesses in determining whether an
interruption in the prescriptive user’s adverse mental state
occurred.” Id. ¶ 32. And “where it is unclear whether a
prescriptive user accepted the landowner’s permission, but the
user acted in a way that would lead a reasonable person to believe
that the user had so accepted, this fact should lead the fact finder
to conclude that a mental interruption of the prescriptive period
occurred.” Id.

¶61 Here, there was extensive evidence that the Fautins never
had the sort of adverse mental state necessary to support a
prescriptive easement in gross. To the contrary, the evidence
shows that the Fautins continued to submit to the Property owner
by actively reaching out for keys and seeking the permission from
the owner or the agent of the owner (namely, DeLuke or Peterson)
to use the Property. “The pill that is hard for many appellants to
swallow is that if there is evidence supporting a finding, absent a
legal problem—a fatal flaw—with that evidence, the finding will
stand, even though there is ample record evidence that would
have supported contrary findings.” Kimball v. Kimball, 2009 UT
App 233, ¶ 20 n.5, 217 P.3d 733 (cleaned up). This is the case here.
It’s true that the Fautins have presented evidence that could be
construed in their favor—that they had an adverse mental state.
But it’s equally true that there is plenty of evidence cutting in the
other direction—that they sought permission and “submit[ted] to
the title of the landowner by accepting” that permission—to use
the Road. See Harrison, 2020 UT 22, ¶ 31 (cleaned up).

¶62 It is irrelevant whether the Fautins knew precisely who
owned the Road. The fact remains that the Fautins sought and
accepted permission to use the Road from the presumptive owner

20220432-CA 23 2024 UT App 60
S&W v. Fautin

or that owner’s agent. And this fact—fulsomely supported by the
record—defeats their claim that their use of the Road was adverse
because it belies their contention of non-submission. Accordingly,
we perceive no error in the district court’s conclusion that the
Fautins did not possess a prescriptive easement for lack of an
adverse mental state.

CONCLUSION

¶63 The Fautins’ claim that the district court incorrectly
interpreted and applied the Dedication Statute fails because the
court’s determination that there was no public use for the
statutory period was supported by the evidence. The district
court’s determination that no prescriptive easement existed was
correct because it was supported by unchallenged findings
supporting the conclusion that the Fautins did not possess an
adverse mental state.

¶64 Affirmed.

20220432-CA 24 2024 UT App 60