Posted: February 14, 2024
Civil Jury Instructions – Easements by Prescription, Necessity, and Implication – Comment period expires March 15, 2024
The following Model Utah Civil Jury Instructions addressing Easements by Prescription, Necessity, and Implication have been drafted and published.
CV921 – Prescriptive Easement. Introduction.
CV922 – Prescriptive Easement. Elements of a claim.
CV923 – Prescriptive Easement. “Continuous” Defined.
CV924 – Prescriptive Easement. “Open and Notorious” Defined.
CV925 – Prescriptive Easement. “Adverse” Defined.
CV926B – Overcoming Adverse Presumption.
CV930 – Easement by Necessity. Introduction.
CV931 – Easement by Necessity. Elements of a claim for access to landlocked property.
CV940 – Easement by Implication. Introduction.
CV941 – Easement by Implication. Elements.
Please reference the instruction(s) in your comments. Although these instructions are subject to a comment period, they are now ready for use. The Model Civil Jury Instructions Committee will consider all comments made during the comment period and may revise the instructions as appropriate. To view all MUJI Civil instructions please visit the MUJI website – here.
The Judicial Council also encourages judges and practitioners to continuously share their experiences using any of the published instructions with the Model Civil Jury Instructions Committee. To view the Committee’s work please visit the MUJI Civil Committee website – here.
Greetings,
CV923 (definition of “continuous”) should more accurately reflect the discussion of the “mental state” requirement under Harrison v. SPAH Family Ltd., 2020 UT 22. Below is a proposed revision. (My apologies that the website does not allow for formatting to highlight changes.)
[Plaintiff’s] use of [Defendant’s] property was continuous if [Plaintiff] physically used
[Defendant’s] property as often as required by the nature of the use and [Plaintiff’s]
needs, with the mental state that [Plaintiff] had the right to use the property as against [Defendant], for an uninterrupted period of at least twenty years.
A prescriptive use is not continuous where, sometime during the twenty-year period:
(1) [Plaintiff] stops using [Defendant’s] property;
(2) [Defendant] [or a previous owner of [Defendant’s] property] prevents
[Plaintiff] from using the property; or
(3) [Plaintiff] alters [Plaintiff’s] mental state such that it is using the property under [Defendant], such as by accepting permission from [Defendant] [or a previous owner of [Defendant’s] property] to continue using the property.
Greetings,
CV920 (Easement defined) states that a landowner cannot interfere with uses authorized by an easement. Under Utah law, “the owner of the land has the right to continue using its land so long as it does not unreasonably interfere with the easement holder’s use of its easement.” Metro. Water Dist. of Salt Lake & Sandy v. SHCH Alaska Tr., 2019 UT 62, ¶ 49, 452 P.3d 1158. This instruction should say “unreasonably interfering.”
CV922 states: “To establish this prescriptive easement, [Plaintiff] must prove by clear and convincing evidence for at least 20 years that:” This could mean that the proof or trial must continue for 20 years. It would be more clear to state: “To establish this prescriptive easement, [Plaintiff] must prove by clear and convincing evidence that, for at least 20 years:
I recommend changing the wording of the definition of easement to include the word “unreasonably.”
An “easement” is a right to use or control land owned by another person for a specific limited purpose (such as to cross it for access [or insert other example]). An easement prohibits the landowner from UNREASONABLY interfering with the uses authorized by the easement.
The right to use an easement is not absolute. The easement holder has the right to use and enjoy their easement in a manner not inconsistent with the rights of the owner to use their property to the fullest extent. See, eg. Wykoff v. Barton, 646 P.2d 756.