Can trespassers establish public roads through continuous use? Utah County v. Butler Explained

In Utah County v. Butler, the Utah Court of Appeals addressed whether trespassers can establish public roads through continuous use and when statutory damages are required for gate removal across public highways.

Background and Facts

Bennie Creek Road provided access from U.S. Highway 89 to camping areas and hiking trails in the Uinta National Forest. In 1996, defendants erected a metal gate across portions of the road that crossed their properties, blocking public access. Utah County served notice in 1997 ordering gate removal, but defendants refused to comply. After an eight-day bench trial, the court found the road had been dedicated to public use from the mid-1920s until about 1980 but declined to award statutory damages despite the gate remaining in place for over nine years.

Key Legal Issues

The case presented three main issues: (1) whether non-permissive use by trespassers constitutes “public use” under Utah Code section 72-5-104(1) for highway dedication, (2) whether continuous use was established despite seasonal impassability and occasional gates, and (3) whether statutory damages under section 72-7-104(4) are mandatory when installations remain after proper notice.

Court’s Analysis and Holding

The court held that trespassers constitute members of the public for dedication purposes, reasoning that defendants’ interpretation would render the Dedication Statute ineffective since no use could ever qualify as public use. The court distinguished permissive use, which cannot establish dedication, from non-permissive use by trespassers. Regarding continuity, the court found that seasonal weather creating temporary impassability constituted mere intermission rather than interruption of public use. Most significantly, the court ruled that statutory damages are mandatory when gates remain after notice, regardless of whether they are locked, because the statute focuses on installations across public highways, not their operational status.

Practice Implications

This decision establishes that landowners challenging highway dedication should focus on legal standards rather than factual disputes, as appellate courts afford significant deference to trial courts’ credibility determinations. The mandatory nature of statutory damages creates substantial financial risk for landowners who maintain installations while litigating, as the $10 daily penalty continues accruing without tolling provisions during legal proceedings.