Leeds v. Prisbrey

1 Utah County v. Butler, 2008 UT 12, 179 P.3d 775; Wasatch
County v. Okelberry, 2008 UT 10, 179 P.3d 768.
2 Utah Code Ann. § 72-5-104(1) (2001).
2008 UT 11
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Town of Leeds, a Utah municipal 	No. 20061085
corporation,
Plaintiff and Appellee,
v.
F I L E D
Terry Prisbrey,
Defendant and Appellant. 	February 12, 2008
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Fifth District, St. George
The Honorable James L. Shumate
No. 060500408
Attorneys: 	Heath H. Snow, Bryan J. Pattison, St. George, for
plaintiff
Jeffrey C. Peatross, St. George, for defendant
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DURRANT, Justice:
INTRODUCTION
¶1 	This case, along with two companion cases that we also
decide today, 1 concerns Utah Code section 72-5-104(1) (the
“Dedication Statute”), which provides 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 ten
years.” 2 	In this case we consider whether a continuously manned
twenty-four-hour roadblock is an interruption in continuous use
sufficient to restart the running of the Dedication Statute’s
ten-year period. 	We hold that it is.

3 An earlier version of this statute was in effect at the
time the Town of Leeds claims West Center Street was dedicated
and abandoned to the use of the public. 	See Utah Code Ann. § 27-
12-89 (1995). 	A 1998 amendment to the earlier version renumbered
this section but made no substantive changes to it. 	1998 Utah
Laws 861. 	We therefore refer to the current version of the
statute throughout this opinion.
No. 20061085 	2
BACKGROUND
¶2 	The road known as West Center Street in the Town of
Leeds originates at an intersection with Main Street, extends
north to the crest of a small incline, and then proceeds downhill
across real property owned by Terry Prisbrey through a narrow
“box” underpass beneath Interstate 15 to an area known as Angel
Springs. 	In 2000, Mr. Prisbrey purchased the property from
Joanne George, whose family had owned the property since 1878.
Sometime thereafter, Mr. Prisbrey, in an attempt to restrict
travel on the road, erected a chain link fence across the road at
the entrance to the “box” tunnel and affixed “No Trespassing”
signs to the fence. 	In response, the Town of Leeds filed this
action seeking a declaratory judgment deeming West Center Street
dedicated to the public pursuant to Utah Code section 72-5-
104(1) 3 and a temporary restraining order and injunction
enjoining Mr. Prisbrey from restricting travel on the road.
¶3 	The trial court conducted evidentiary hearings
regarding the temporary restraining order. 	By stipulation of the
parties, the hearings were consolidated with and considered as a
trial on the merits. 	The trial court heard testimony from a
number of witnesses who claimed that they used West Center Street
whenever they wished, without restriction, and without obtaining
Mrs. George’s permission. 	The trial court also heard from Mrs.
George, who testified that in October 1964, and again in October
1971, 1978, 1985, 1992, and 1999, she, alone or with the
assistance of her sons, set up a twenty-four-hour roadblock on
West Center Street for the purpose of retaining private ownership
of the road. 	These roadblocks consisted of her or her sons’
physical presence, sawhorses placed across the road, and “No
Trespassing” signs placed on the sawhorses. 	Mrs. George
testified that she never encountered anyone attempting to travel
on West Center Street during her roadblocks and knows of no one
who was actually prevented from using the road because of her
blockades.
¶4 	At the conclusion of the hearings, the trial court
entered its Findings of Fact and Conclusions of Law. 	It
concluded that “[m]embers of the public traveled West Center

4 Wasatch County v. Okelberry, 2008 UT 10, ¶ 8, 179 P.3d
768.
5 Heber City Corp. v. Simpson, 942 P.2d 307, 309-10 (Utah
1997).
6 Id. at 310.
3 	No. 20051085
Street from 1966 to 1996 as often as they found it convenient or
necessary, at times chosen by them and, therefore, the public’s
use of West Center Street was continuous during that period of
time.” 	It also concluded that, during the same period of time,
West Center Street was used as a public thoroughfare because
“there was not sufficient action taken to adequately put the
public on notice either that permission was needed to use West
Center Street nor was there sufficient action taken by Mrs.
George to obstruct the public’s free and unrestricted passing and
travel on West Center Street.” 	And the court found that
“continuous use of West Center Street as a public thoroughfare
was made for a period of ten years (1966 to 1996).” 	Thus, the
court concluded that the Town of Leeds had demonstrated by clear
and convincing evidence that “West Center Street is a dedicated
public road pursuant to Utah Code Ann. § 72-5-104(1).” 	The court
ordered Mr. Prisbrey to remove any obstructions of or signage on
West Center Street and enjoined him from taking future action to
prevent travel on the road. 	Mr. Prisbrey appealed; we have
jurisdiction pursuant to Utah Code section 78-2-2(3)(j).
STANDARD OF REVIEW
¶5 	We review the “trial court’s legal interpretation of
the Dedication Statute for correctness and its factual findings
for clear error.” 4 	But 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. 5 	Thus, we review
the “trial court’s decision regarding whether a public highway
has been established under [the Dedication Statute] . . . for
correctness but grant the court significant discretion in its
application of the facts to the statute.” 6
ANALYSIS
¶6 	The Dedication Statute provides as follows: 	“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

7 Utah Code Ann. § 72-5-104(1) (2001).
8 Boyer v. Clark, 326 P.2d 107, 109 (Utah 1958).
9 2008 UT 10, ¶ 15.
10 Id.
11 See id. ¶ 16 (explaining that periods of time between
usages of an infrequently traveled road are mere intermissions,
not interruptions, and that the distinction between an
intermission and an interruption “lies in the intent and conduct
of the property owner”).
No. 20061085 	4
ten years.” 7 	We have explained that a road is “continuously
used” when the public makes “a continuous and uninterrupted use”
of it “as often as they [find] it convenient or necessary.” 8 	In
Wasatch County v. Okelberry, a companion case that we decide
today, we set forth a bright-line rule for determining what
qualifies as an interruption in continuous use sufficient to
restart the running of the Dedication Statute’s ten-year period:
“[a]n 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.” 9 	Credible evidence of such an interruption
precludes a finding of continuous use. 10
¶7 	In this case, the trial court found that West Center
Street was continuously used as a public thoroughfare from 1966
to 1996. 	But the court also found that Mrs. George, in 1964,
1971, 1978, 1985, 1992, and 1999, established twenty-four-hour
physical roadblocks of West Center Street. 	This, Mrs. George
testified, she did with the intent of retaining private ownership
of the road. 	We conclude that Mrs. George’s testimony is
credible evidence of overt acts intended and reasonably
calculated to interrupt the use of West Center Street as a public
thoroughfare. 	Although she did not block the public’s actual use
of the road because her roadblocks occurred during intermissions
in the road’s use, Mrs. George’s intent and conduct were
nevertheless sufficient to interrupt West Center Street’s
continuous use as a public thoroughfare for purposes of the
Dedication Statute. 11 	Because each of Mrs. George’s roadblocks
was an interruption sufficient to restart the running of the
Dedication Statute, West Center Street has not been continuously
used as a public thoroughfare for a period of ten years. 	We
therefore reverse the trial court’s decision and remand with an
instruction to enter judgment in favor of Mr. Prisbrey.

5 	No. 20051085
CONCLUSION
¶8 	Mrs. George’s twenty-four-hour roadblocks constituted
overt acts intended to interrupt the use of West Center Street as
a public thoroughfare and were reasonably calculated to do so.
These interruptions preclude a finding of continuous use. 	We
reverse the trial court’s decision deeming West Center Street a
dedicated public road and remand with an instruction to enter
judgment in favor of Mr. Prisbrey.
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¶9 	Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Parrish, and Justice Nehring concur in Justice Durrant’s
opinion.