land claim in Utah

2020Valcarce v. Fitzgerald, 961 P.2d 305 , 311–12 (Utah 1998) (“[O]nce a claimant has shown an open and continuous use of the land under claim of right for the twenty-year prescriptive period, the use will be presumed to have been adverse.

2017However, “once a claimant has shown an open and continuous use of the land under claim of right for the twenty-year prescriptive period, the use will be presumed to have been adverse.” Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998) (plurality opinion).

2017At that point, the landowner, “to prevent the prescriptive easement from arising[,] has the burden of showing that the use was under him instead of against him.” Zollinger v. Frank, 175 P.2d 714, 716 (Utah 1946).

2015See Zollinger, 175 P.2d at 715 . $22 Thus, the presumption of adverse use applies onee the allegedly adverse user has shown an open and continuous use of the land under claim of right for the twenty-year prescriptive period, absent evidence of a license or consent of the servient landowner.

2015A. Presumption of Adverse Use 117 Appellants first argue that the trial court erred by presuming adverse - use and that the court should have instead presumed permissive use. "[Olnce a claimant has shown an open and continuous use of the land under claim of right for the twenty-year prescriptive period, the use will be presumed to have been adverse." Valcarce, 961 P.2d at 811 ; see also Richins v. Struhs, 17 Utah 2d 356 , 412 P.2d 814 , 315 (1966) (holding that "when a claimant has shown that such a use has existed peaceably and without interference for the prescriptive period of 20 years, the

2013The burden then shifts to the landowner opposing the easement to "establish[ ] that the use was initially permissive." Id. at 311-12 ; cf. Buckley, 247 P.2d at 279 ; Harkness v. Woodmansee, 7 Utah 227 , 26 P. 291 , 298 (1891) ("Where a person opens a way for the use of his own premises, and another person uses it also without causing damage, the presumption is, in the absence of evidence to the contrary, th[at] such use by the latter was permissive, and not under a claim of right.").

2013To establish a prescriptive easement, a party must show, "by clear and convincing evidence," Buckley v. Cox, 122 Utah 151 , 247 P.2d 277, 279 (1952), that its use of the area in question has been "(1) open, (2) notorious, (8) adverse, and (4) continuous for at least 20 years," Marchant v. Park City, 788 P.2d 520, 524 (Utah 1990). "[Olnee a claimant has shown an open and continuous use of the land under claim of right for the twenty-year prescriptive period, the use will be presumed to have been adverse." Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998).

2013To establish a prescriptive easement, a party must show, "by clear and convincing evidence," Buckley v. Cox, 122 Utah 151 , 247 P.2d 277, 279 (1952), that its use of the area in question has been "(1) open, (2) notorious, (8) adverse, and (4) continuous for at least 20 years," Marchant v. Park City, 788 P.2d 520, 524 (Utah 1990). "[Olnee a claimant has shown an open and continuous use of the land under claim of right for the twenty-year prescriptive period, the use will be presumed to have been adverse." Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998).

2013The burden then shifts to the landowner opposing the easement to "establish[ ] that the use was initially permissive." Id. at 311-12 ; cf. Buckley, 247 P.2d at 279 ; Harkness v. Woodmansee, 7 Utah 227 , 26 P. 291 , 298 (1891) ("Where a person opens a way for the use of his own premises, and another person uses it also without causing damage, the presumption is, in the absence of evidence to the contrary, th[at] such use by the latter was permissive, and not under a claim of right.").

2013To establish a prescriptive easement, a party must show, "by clear and convincing evidence," Buckley v. Cox, 122 Utah 151 , 247 P.2d 277, 279 (1952), that its use of the area in question has been "(1) open, (2) notorious, (8) adverse, and (4) continuous for at least 20 years," Marchant v. Park City, 788 P.2d 520, 524 (Utah 1990). "[Olnee a claimant has shown an open and continuous use of the land under claim of right for the twenty-year prescriptive period, the use will be presumed to have been adverse." Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998).