This opinion is subject to revision before final

publication in the Pacific Reporter

2020 UT 22

IN THE

SUPREME COURT OF THE STATE OF UTAH

CHARLIE W. HARRISON and TRENA HARRISON,

Appellants,

v.

SPAH FAMILY LTD., STAN E. HOLLAND, and PAGE HOLLAND,

Appellees.

No. 20180537

Heard October 4, 2019

Filed May 8, 2020

On Direct Appeal

Seventh District, Moab

The Honorable Lyle R. Anderson

No. 160700035

Attorneys:

Vincent C. Rampton, Jessica P. Wilde, Salt Lake City, 

for appellants

Troy L. Booher, Freyja R. Johnson, Kristine M. Rogers, Salt Lake 

City, for appellees

CHIEF JUSTICE DURRANT authored the opinion of the Court, in 

which ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS,

JUSTICE PEARCE, and JUSTICE PETERSEN joined.

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1 This is a prescriptive easement case. The district court 

determined, on summary judgment, that Stan and Page Holland 

had established a prescriptive easement across the property of 

their neighbors, Charlie and Trena Harrison. The case then went 

to trial for a determination of the scope of that easement. The jury 

returned a verdict, and the court entered final judgment. The 

Harrisons now appeal, raising five issues regarding either the 
HARRISON v. SPAH FAMILY LTD.

Opinion of the Court

2

district court’s summary judgment decision or decisions the court 

made related to the trial.

¶2 First, they argue the district court erred in determining, 

on summary judgment, that the “continuous” element had been 

indisputably established for the prescriptive period. In their view, 

evidence that they revoked their “acquiescence” of the use 

interrupted the Hollands’ continuous use of the easement. We 

reject this argument because “acquiescence” is not required to 

establish a prescriptive use.

¶3 Second, the Harrisons argue the district court erred on 

summary judgment because any use of the road by the Hollands 

was done with the permission of the original owner of the 

Harrisons’ lot. We reject this argument because the record 

evidence does not support it.

¶4 Third, the Harrisons argue that one of the jury 

instructions was erroneous because it failed to instruct the jury 

that the scope of the easement was limited to its historical use. We 

agree and remand for a new trial with a correct jury instruction.

¶5 Fourth and fifth, the Harrisons argue the district court 

erred in allowing the Hollands’ expert to testify and in excluding 

their rebuttal expert from testifying. Because the district court did 

not abuse its discretion in regard to either expert witness 

determination, we affirm.

Background

¶6 To access their cabin property located in the Willow Basin 

subdivision, Stan and Page Holland claim a prescriptive easement 

across land owned by Charlie and Trena Harrison. The relevant 

ownership history of the Holland and Harrison properties begins 

in 1994. In that year, Janice Hawley (now Janice Gustafson) 

divided nearly one hundred acres of her land into the eight lots 

constituting what is now referred to as the Willow Basin 

subdivision.

¶7 Following the creation of the Willow Basin subdivision, 

Ms. Hawley transferred title to what would later become the 

Holland lot to Manuel Torres. Without Ms. Hawley’s knowledge 

or authorization, Mr. Torres cut a road across what would later 

become the Harrison property. Ms. Hawley believed the road was 

created “as a means of permitting [Mr. Torres] to take prospective 

purchasers to the property for marketing purposes.” In her 

declaration prepared for litigation in this case, Ms. Hawley stated 
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Opinion of the Court

3

that the road was used “thereafter for [marketing purposes] 

pursuant to permission from [her].”

¶8 On August 9, 1996, Mr. Torres sold the Holland property 

to the Hollands.1 That same day, the Hollands used the road 

across what is now the Harrison property to access their new lot. 

The Hollands did not receive permission from Ms. Hawley to use 

the road. The Hollands have regularly used the road to access 

their property ever since.

¶9 In 2008, Ms. Hawley sold the Harrison property to the 

Harrisons. Thereafter, Mr. Harrison altered the road. The 

Hollands testified that Mr. Harrison widened the turning point 

going toward his cabin, but that he had done little to the rest of 

the road. In contrast, Mr. Harrison estimated that the road was 

nine to twelve feet wide when he purchased the parcel, and he 

testified that the width of the road is now “upwards of 30 feet 

wide.” The Hollands continued using the road across the 

Harrison property after the Harrisons acquired title.

¶10 In June 2016, Mr. Holland and Mr. Harrison had a verbal 

disagreement concerning the road. At that time, or some time 

before, Mr. Harrison attempted to forbid the Hollands from using 

the road.

¶11 On September 13, 2016, Mr. Harrison parked a bulldozer 

on the road, blocking the Hollands’ access. In response, the 

Hollands called the police. Ms. Holland filed a statement with the 

police, explaining that Mr. Harrison had blocked the road with a 

bulldozer. She also referenced the June 2016 verbal dispute 

between Mr. Holland and Mr. Harrison, explaining that the police 

had also been called on that occasion and that Mr. Harrison had 

told Mr. Holland that Mr. Holland could not use the road.

¶12 Shortly after the bulldozer incident, the Harrisons filed 

this lawsuit, suing the Hollands for trespass based on the 

Hollands’ use of the road crossing the Harrisons’ property. The 

Hollands counterclaimed, seeking to quiet title to a prescriptive 

easement for access to their property over the Harrisons’ 

property. In April 2017, the Hollands filed for partial summary 

judgment, arguing that all the elements for a prescriptive 

__________________________________________________________

1 The Hollands subsequently transferred title to the Holland 

property to SPAH Family Ltd., their limited partnership.
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Opinion of the Court

4

easement had been satisfied. In opposition, the Harrisons argued 

that a prescriptive easement did not form because they had not 

acquiesced to the Hollands’ use during the entire twenty-year 

prescriptive period. They also argued that the use was permissive. 

After a hearing, the district court found, as a matter of law, that 

the Hollands had established a prescriptive easement.

¶13 In October 2017, the Harrisons filed a motion to 

reconsider, raising arguments based on statements Ms. Holland 

made in her September 2016 police report. This was the first time 

the police report had been presented to the district court. The 

Harrisons argued that the district court should consider the police 

report because it constituted newly discovered evidence. They 

argued that this evidence showed that, in June 2016, 

(1) Mr. Harrison had informed Mr. Holland that he did not 

acquiesce in the Hollands’ use of the easement and (2) the police 

had been called and litigation had been threatened regarding the 

Hollands’ use of the easement.

¶14 The Harrisons relied on this evidence to argue that the 

prescriptive period had been interrupted in June 2016, roughly 

two months before the completion of the twenty-year prescriptive 

period. The Hollands objected to the motion to reconsider, 

arguing that the police report did not constitute new evidence 

because it had existed for nearly one year before the parties filed 

their memoranda related to summary judgment. The district court 

denied the motion to reconsider without stating its reasoning.

¶15 The case proceeded to trial to determine the scope of the 

Hollands’ prescriptive easement. Before trial, the Harrisons 

sought to exclude testimony from Lucas Blake, the Hollands’ 

retained expert witness. Mr. Blake intended to testify about a 

survey of the road he performed in 2016. The Harrisons argued 

that Mr. Blake’s testimony should be excluded because the scope 

of the road in 2016 was irrelevant to determining the scope of the 

easement. The court denied the motion because it found that 

evidence of the then physical dimensions of the road would prove 

helpful in determining the scope of the prescriptive easement.

¶16 The Harrisons also objected to the wording of the jury 

instruction regarding the prescriptive easement. As presented, the 

jury instruction stated that the jury needed to decide the “width of 

the easement . . . necessary for [the Hollands] to access their 

property.” Although the instruction also asked the jury to take

into account “the historic[al] use and shape of the roadway during 

its 20 years of use,” the Harrisons asked the court to include a line 
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Opinion of the Court

5

instructing the jury that the “extent of a prescriptive easement is 

measured and limited by its historic[al] use during the 

prescriptive period.” But the court declined, stating that it 

believed the instruction sufficient as written.

¶17 At trial, Mr. Blake testified, and the Harrisons sought to 

introduce rebuttal testimony from Brad Bunker, their own expert 

witness. Mr. Bunker intended to testify that “Mr. Blake’s survey 

was not based on historic[al] use of the easement claimed by [the 

Hollands], but was formulated by (1) measuring the edges of the 

road across the [Harrisons’] property as it existed in October 2016, 

and (2) establishing a center line of that road by ‘eyeballing a 

midpoint line.’” The court ruled that Mr. Bunker would not be 

allowed to testify, because the testimony usurped the court’s 

responsibility in instructing the jury.

¶18 The jury returned a finding regarding the scope of the 

prescriptive easement that was based on Mr. Blake’s 2016 survey. 

In the special verdict form, the jury stated that it returned this 

finding because it was “consistent with other easements in [the] 

subdivision.” The court entered final judgment on June 5, 2018. 

The Harrisons timely appealed.

¶19 In their opening brief on appeal, the Harrisons challenge 

the district court’s decision on summary judgment based on 

evidence contained in the September 2016 police report. But they 

do not challenge the district court’s decision on their motion to 

reconsider, the motion in which they first introduced the police 

report as evidence. The Harrisons also challenge the district 

court’s summary judgment decision regarding permissive use, the 

court’s decision regarding the expert testimony of Mr. Blake and 

Mr. Bunker, and the jury instruction regarding prescriptive 

easements. We have jurisdiction pursuant to Utah Code section 

78A-3-102(3)(j).

Standards of Review

¶20 The Harrisons ask us to resolve five issues. First, we must 

determine whether the district court erred on summary judgment 

in ruling that the Hollands had established twenty years of 

uninterrupted prescriptive use. Second, we must determine 

whether the court erred on summary judgment in ruling that the 

Hollands had established that their use had been adverse, rather 
HARRISON v. SPAH FAMILY LTD.

Opinion of the Court

6

than permissive. We review summary judgment rulings for 

correctness, viewing the facts and inferences in the light most 

favorable to the nonmoving party.2

¶21 Third, we must determine whether the court erred in 

instructing the jury regarding the scope of the Hollands’ 

prescriptive easement. We review challenges to jury instructions 

for correctness.3

¶22 Fourth, we must determine whether the court erred in 

admitting evidence from the Hollands’ retained expert. And fifth, 

we must determine whether the court erred in excluding evidence 

from the Harrisons’ rebuttal expert. We review a court’s decision 

regarding the admissibility of expert testimony for an abuse of 

discretion.4 A court does not abuse its discretion in admitting or 

excluding expert testimony “unless the decision exceeds the limits 

of reasonability.”5

Analysis

¶23 The Harrisons raise five issues on appeal. First, they 

argue the trial court erred in determining, as part of its decision 

on summary judgment, that the “continuous” element had 

indisputably been established for the prescriptive period. We 

reject this argument because it is based on a misunderstanding of 

the legal requirements for establishing a prescriptive use.

¶24 Second, the Harrisons argue the district court erred in 

determining, on summary judgment, that the prescriptive use had 

been adverse because the original owner of the Harrisons’ lot had 

given the Hollands’ predecessor permission to use the road. We 

reject this argument because it is not supported by the record.

¶25 Third, the Harrisons argue that one of the jury 

instructions was erroneous because it failed to instruct the jury 

that the scope of the easement was limited to its historical use. We 

agree. Accordingly we remand for a new trial with a correct jury 

instruction.

__________________________________________________________

2 Orvis v. Johnson, 2008 UT 2, ¶ 6, 177 P.3d 600.

3 Green v. Louder, 2001 UT 62, ¶ 14, 29 P.3d 638.

4 State v. Holm, 2006 UT 31, ¶ 10, 137 P.3d 726.

5 State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993).
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Opinion of the Court

7

¶26 Fourth and fifth, the Harrisons argue the district court 

erred in allowing the Hollands’ expert to testify and in excluding 

their rebuttal expert from testifying. Because the district court did 

not abuse its discretion in regard to either expert witness, we 

affirm.

I. We Affirm the District Court’s Determination That the Hollands 

Used the Road Continuously for Twenty Years

¶27 The district court correctly determined that the Hollands’ 

prescriptive use was continuous for twenty years. The Harrisons 

argue that to be “continuous” a prescriptive use “must continue 

uninterrupted, with the acquiescence of the [landowner], for the 

entire prescriptive period.” Because there is clear evidence that 

the Harrisons did not “acquiesce” in the Hollands’ use of the 

easement for the full twenty-year period, they argue that the 

district court erred in determining that the “continuous” element 

had indisputably been established for the prescriptive period. But 

the Harrisons’ argument on this point fails because an owner’s 

“acquiescence” is not needed to establish a prescriptive use.6

__________________________________________________________

6 On appeal, the Harrisons point to two pieces of evidence that, 

in their view, demonstrate that they did not acquiesce in the 

prescriptive use for the full twenty-year period. First, they point

to Charlie Harrison’s sworn declaration, in which he testified that 

he had revoked his acquiescence. Second, they point to a 

September 2016 police report, which contains evidence regarding 

multiple disputes between the families. Although “acquiescence” 

is not needed to establish a prescriptive easement, we note that it 

would be improper to consider this evidence on appeal. This is 

because the Harrisons did not present the police report evidence 

to the district court as part of their opposition to summary 

judgment. Instead, they presented it for the first time 

approximately one year later as part of their motion to have the 

court reconsider its summary judgment decision—a motion the 

district court denied. Because the Harrisons have not challenged 

the district court’s denial of their motion to reconsider in their 

principal brief, we cannot consider the police report evidence on 

appeal. This is because, by considering that evidence, we would 

implicitly overrule the district court’s unchallenged denial of the 

motion to reconsider.
HARRISON v. SPAH FAMILY LTD.

Opinion of the Court

8

¶28 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.”7 The Harrisons argue 

that the “continuous” element was not satisfied for the full 

twenty-year period because, a few months before the twenty-year 

period was complete, Mr. Harrison informed the Hollands that he 

did not acquiesce in the Hollands’ continued use. But a 

landowner’s lack of acquiescence in a prescriptive use does not 

interrupt the running of a prescriptive period.

¶29 To satisfy the “continuous” element, prescriptive users 

must show only that they used the easement “as often as required 

by the nature of the use and the needs of the [user]” without 

interruption during the twenty-year period.8 According to the 

Restatement (Third) of Property, there “are two aspects to the 

requirement that a prescriptive use be continued for the 

prescriptive period: one mental, the other physical.”9 The mental 

aspect “requires that the prescriptive user remain in an adverse 

posture to the holder of the servient estate throughout the 

prescriptive period.”10 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.”11 The 

physical aspect of continuous use, on the other hand, requires that 

the prescriptive user actually and continually use the easement 

throughout the prescriptive period.12

¶30 Under this formulation of the “continuous” element of 

prescriptive easements, a prescriptive period is interrupted where 

the prescriptive user halts his or her actual use of the easement or 

where the prescriptive user alters his or her mental state (so that 

__________________________________________________________

7 Judd v. Bowen, 2018 UT 47, ¶ 12, 428 P.3d 1032 (internal 

quotation marks omitted) (citation omitted).

8 Crane v. Crane, 683 P.2d 1062, 1064 (Utah 1984) (internal 

quotation marks omitted).

9 RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.17 cmt. i (AM.

LAW INST. 2000).

10 Id.

11 Id.

12 Id.
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Opinion of the Court

9

the prescriptive user begins using the easement under the owner 

rather than against the owner). An alteration in a prescriptive 

user’s mental state most often occurs where the prescriptive user 

accepts a landowner’s permission to continue using the 

easement.13

¶31 To be clear, because it is the mental state of the prescriptive 

user that is the focus of this analysis, 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.”14 So it is the prescriptive user’s 

submission to the landowner that interrupts the prescriptive 

period—not the owner’s grant of permission.15

__________________________________________________________

13 Id.

14 Id. cmt. j. 

15 See also id. § 2.16 cmt. f (“A use that begins as adverse can be 

converted to a permissive or subordinate use if the user agrees to 

accept a license from the landowner, or if the user acts in such a 

way that the ordinary landowner would believe that the user has

accepted the grant of a license to use the land.”). In property law, 

the term “license” typically refers to the revocable permission, 

given by a landowner to a user (or licensee), for a specific use of 

the landowner's land. See License, BLACK’S LAW DICTIONARY (11th 

ed. 2019) (“A permission, usu. revocable, to commit some act that 

would otherwise be unlawful; esp., an agreement (not amounting 

to a lease or profit à prendre) that it is lawful for the licensee to 

enter the licensor’s land to do some act that would otherwise be 

illegal, such as hunting game.”). A license can be created orally or 

in writing. See King Bros., Inc. v. Utah Dry Kiln Co., 440 P.2d 17, 21 

(Utah 1968) (“A licensee differs from a lessee in that the latter has 

a possessory interest. There is no right of possession in the 

licensee. There is a plain difference between a license and a lease. 

A lease differs from a license in that a lease of land passes an 

interest in the land, requires a writing to comply with the Statute 

of Frauds, although not always a seal, and transfers possession, 

while a license merely excuses acts done by one on land in 

possession of another that without the license would be a trespass, 

conveys[] no interest in the land, and may be contracted for or 

given orally. A tenancy implies some interest in the land leased, 

(Continued)
HARRISON v. SPAH FAMILY LTD.

Opinion of the Court

10

¶32 We note that whether a prescriptive user has submitted to 

the landowner’s ownership is a factual determination made by the 

fact finder after weighing all relevant evidence. So, for example, 

where 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. And, as another example, 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.16

¶33 In contrast to a mental interruption of a prescriptive 

period, a prescriptive period may be physically interrupted only 

“if it brings about a cessation of use” that is “long enough to 

indicate” that the prescriptive user has abandoned the use.17 In 

 

while a license gives only a temporary privilege in the use of the 

property, usually revocable at the pleasure of the licensor.”).

16 Additionally, we note that where the facts regarding a 

prescriptive user’s mental state are truly ambiguous, the question 

will likely be resolved based on the presumption that arises from

the nature of the initial use. Under our case law, where a use of an 

easement is initially permissive, there is a presumption that it 

remains permissive—a presumption the user must rebut. Richins 

v. Struhs, 412 P.2d 314, 316 (Utah 1966) (explaining that where

“the use was initially permissive, then the burden of going 

forward with evidence and of ultimate persuasion shifts back to 

the claimant to show that the use became adverse and continued 

for the prescriptive period”). But where the use is not initially 

permissive, the presumption goes the other way. Valcarce 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. To prevent the prescriptive 

easement from arising, the owner of the servient estate then has 

the burden of establishing that the use was initially permissive.” 

(citation omitted)).

17 RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.17 cmt. j (AM.

LAW INST. 2000).
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Opinion of the Court

11

other words, to be successful, the owner’s attempt to prevent the 

prescriptive use must cause the prescriptive user to actually 

abandon the use.

¶34 For this reason, any action taken by a landowner to stop a 

prescriptive use is effective only where it actually stops the use. In 

fact, where a landowner attempts, but fails, to interrupt a 

prescriptive use, the unsuccessful attempt serves only to reinforce 

“the argument that the use is adverse,” and so “does not work an 

interruption.”18 Accordingly, it “is not sufficient merely to attempt 

an interruption or to render the use less convenient. The 

obstruction must in fact interfere with the claimant’s usage. Thus, 

the erection of gates during the prescriptive period is immaterial 

where they do not prevent a claimant from using a road.”19

¶35 So, under the Restatement’s approach to the continuous 

use element, evidence that a landowner does not acquiesce in a 

prescriptive user’s use or that the landowner unsuccessfully 

attempted to stop the prescriptive use would not interrupt the 

running of the prescriptive period. Our case law is consistent with 

this approach.

¶36 Under our case law, a prescriptive use is “continuous” 

where the prescriptive user used the easement “whenever they 

desired and as a right.”20 And we have explained that this use 

must have been continually “against” the rights of the landowner, 

rather than “under” the landowner, for the entire prescriptive 

period.21 So, like the Restatement, our case law has identified a 

mental aspect of prescriptive use—an “adverse” mental state or a 

mental state “against” the owner.

¶37 And, also like the Restatement, our case law recognizes 

that it is the mental state of the prescriptive user, rather than of 

the landowner, that matters in determining whether a use was 

continuous for the entire prescriptive period. For example, in Lunt 

__________________________________________________________

18 Id.

19 JON W. BRUCE & JAMES W. ELY, JR., THE LAW OF EASEMENTS &

LICENSES IN LAND § 5:16 (2019) (footnotes omitted).

20 Richards v. Pines Ranch, Inc., 559 P.2d 948, 949 (Utah 1977).

21 Zollinger v. Frank, 175 P.2d 714, 715 (Utah 1946).
HARRISON v. SPAH FAMILY LTD.

Opinion of the Court

12

v. Kitchens,

22 we held that a prescriptive easement had not been 

formed because the landowner had “produced evidence that [the 

prescriptive user] considered the use permissive and not 

adverse.” So in Lunt it was the prescriptive user’s belief that he 

was using the road with the landowner’s permission that 

prevented the prescriptive easement from being formed.

¶38 And in Crane v. Crane,

23 we clarified that a prescriptive 

user can maintain an adverse mental state even where an owner 

offers permission to continue using the easement. In that case we 

held that a prescriptive easement had been established, even 

though the landowner had provided the prescriptive users with a 

key to enter through a gate. The landowner argued that his act of 

giving the prescriptive users a key rendered the prescriptive use 

permissive, rather than adverse. But we disagreed.24

¶39 Although we acknowledged that the landowner had 

offered the prescriptive users a key, we held that the “use was 

adverse to rather than by permission of” the landowner.25 We did 

so “in view of the [prescriptive users’] insistence . . . that they had 

a right to use the trail and would force their way through if 

necessary.”26 In other words, we held that the landowner’s offer to 

permit the users to cross his land did not interrupt the 

prescriptive use, because it was clear that the prescriptive users 

would have continued using the easement even without that 

permission. So our decision in Crane demonstrates that a 

landowner cannot interrupt the prescriptive use of an easement 

by offering permission to continue using the easement. Instead, 

the prescriptive use is interrupted only where the prescriptive 

user submits to the ownership rights of the landowner by 

accepting the landowner’s permission.

¶40 Additionally, our focus on the mental state of the 

prescriptive user means that, where the user has consistently 

maintained an adverse mental state, the landowner’s acquiescence 

__________________________________________________________

22 260 P.2d 535, 538 (Utah 1953).

23 683 P.2d at 1065.

24 Id.

25 Id.

26 Id.
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Opinion of the Court

13

or lack of acquiescence is insufficient to interrupt the prescriptive 

period. Crane also illustrates this principle. Although the 

landowner in Crane attempted to grant the prescriptive users 

permission at one point during the twenty-year prescriptive 

period, at other times he attempted to stop the prescriptive use by 

erecting a gate and refusing to provide the key.27 But even though 

these attempts provided clear evidence that the landowner did 

not acquiesce in the prescriptive users’ use of the easement, this 

lack of acquiescence did not interrupt the running of the 

prescriptive period.28 In other words, because it is the mental state 

of the prescriptive user, and not the mental state of the 

landowner, that controls whether a prescriptive use has been 

continuous, evidence that the landowner clearly did not 

“acquiesce” was insufficient to rebut evidence that the 

prescriptive user had continuously maintained an adverse mental 

state throughout the prescriptive period.

¶41 Accordingly, under our case law it is the mental state of 

the prescriptive user, rather than the mental state of the 

landowner, that determines whether a prescriptive period has 

been interrupted. So our case law is consistent with the 

Restatement principle that 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.”29

¶42 Our case law is also consistent with the Restatement’s 

requirement of continuous physical use by the prescriptive user. 

As we already explained, under the Restatement’s approach, 

where a landowner attempts, but fails, to interrupt a prescriptive 

use, the unsuccessful attempt serves only to reinforce “the 

argument that the use is adverse,” and so “does not work an 

interruption.”30 In Crane, the prescriptive use was not interrupted 

__________________________________________________________

27 Id.

28 Id.

29 RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.17 cmt. j (AM.

LAW INST. 2000).

30 Id.; see also JON W. BRUCE & JAMES W. ELY, JR., THE LAW OF 

EASEMENTS AND LICENSES IN LAND § 5:16 (2019) (explaining that it 

“is not sufficient merely to attempt an interruption or to render 

(Continued)
HARRISON v. SPAH FAMILY LTD.

Opinion of the Court

14

when the landowner erected physical barriers, because each time 

the landowner erected those barriers the prescriptive users “cut 

the fence and the gate and went through anyway.”31 Thus our 

decision in Crane demonstrates that an attempt by the landowner 

to stop a prescriptive use interrupts the prescriptive period only 

where it “brings about a cessation of use” that is “long enough to 

indicate” that the prescriptive user has abandoned the use.32

¶43 As illustrated by our case law, our approach to the 

“continuous use” element of prescriptive easements is consistent 

with the Restatement’s approach. And under that approach, there 

“are two aspects to the requirement that a prescriptive use be 

continued for the prescriptive period: one mental, the other 

physical.”33 This means that a landowner may interrupt a 

prescriptive period only by altering the mental state of the 

prescriptive user (so that the prescriptive user begins using the 

easement under the owner rather than against the owner) or by 

successfully halting the actual use of the easement. Under this 

approach, the Harrisons’ arguments regarding the interruption of 

the Hollands’ prescriptive use fail.

¶44 First, the Harrisons argue that the Hollands’ use of the 

road was interrupted because Mr. Harrison clearly indicated that 

he did not acquiesce in the use of the road. But, under the 

Restatement’s approach, whether the Harrisons acquiesced in the 

Hollands’ use is relevant only to the extent it provides evidence of 

the Hollands’ mental state. In other words, in analyzing whether 

the Hollands’ prescriptive use was continuous for twenty years, 

we need determine only whether the required mental or physical 

aspects of the Hollands’ use were uninterrupted. And with this 

inquiry in mind, it is clear that Mr. Harrison’s attempt to prohibit 

the Hollands from using the road did not interrupt the 

prescriptive period.

 

the use less convenient. The obstruction must in fact interfere with 

the claimant’s usage. Thus, the erection of gates during the 

prescriptive period is immaterial where they do not prevent a 

claimant from using a road” (footnotes omitted)).

31 683 P.2d at 1065.

32 RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.17 cmt. j (AM.

LAW INST. 2000).

33 Id.
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Opinion of the Court

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¶45 After Mr. Harrison told the Hollands they could not use 

the road, the Hollands did not indicate that they submitted to the 

Harrisons’ ownership of the road in any way. The Hollands did 

not abandon their claim to the road nor did they cease to use it. So 

Mr. Harrison’s attempt to prohibit the Hollands from using the 

road did not alter the Hollands’ mental state regarding their right 

to use the easement. That is, it did not cause them to believe that 

they could only use the road with the Harrisons’ permission. And 

it did not alter the Hollands’ physical use of the road.

¶46 Second, the Harrisons cite the Restatement to argue that a 

call to the police in June—after Mr. Harrison’s argument with 

Mr. Holland—constituted sufficient “legal proceedings” to 

interrupt the prescriptive period. But, as we have discussed, 

under the Restatement’s approach, a use may be interrupted only 

where a landowner successfully alters the mental state of the 

prescriptive user so that it is no longer adverse (or “against” the 

owner), or where the landowner actually stops the use. So even 

though a landowner may certainly use legal proceedings to stop a 

prescriptive user from using the easement, the commencement of 

legal proceedings, on its own, does not interrupt the prescriptive 

period unless it causes the prescriptive user to cease using the 

easement adversely or it leads to a successful outcome on the 

landowner’s behalf.

¶47 The Bruce and Ely treatise, The Law on Easements & 

Licenses in Land, states this principle clearly. Bruce and Ely 

explain that, in “addition to actually obstructing adverse 

usage . . . , a landowner may interrupt the use by instituting 

successful legal proceedings.”34 But they explain that the “filing of 

an action by a landowner against whom the statute of limitations 

is running will interrupt the prescriptive period [only] if the 

lawsuit results in a judgment that the use was improper.”35 So 

where a landowner prevails against a prescriptive user, the 

“judgment relates back to the start of the proceedings” and the 

use is deemed to have been interrupted when the lawsuit was 

__________________________________________________________

34 JON W. BRUCE & JAMES W. ELY, JR., THE LAW OF EASEMENTS 

AND LICENSES IN LAND § 5:16 (2019).

35 Id.
HARRISON v. SPAH FAMILY LTD.

Opinion of the Court

16

filed.36 Thus a successful judgment against a prescriptive user is 

deemed to have interrupted the prescriptive user’s use as of the 

date the lawsuit was filed. But an unsuccessful lawsuit does not 

interrupt the use at all.

¶48 Under this rule, the phone calls to the police were 

insufficient to interrupt the running of the prescriptive period. 

Accordingly, the Harrisons’ other argument regarding the 

interruption in the Hollands’ use of the easement fails.

¶49 In sum, under our case law a prescriptive use is 

interrupted where the prescriptive user alters the mental or 

physical nature of his or her use of the easement. So a prescriptive 

use is interrupted where a prescriptive user submits to the rights 

of the landowner or ceases to use the prescriptive easement. 

Because the Harrisons fail to point to any evidence that the 

Hollands submitted to the Harrisons’ ownership of the easement 

or that the Hollands stopped using it, the district court did not err 

in concluding that the use of the easement had not been 

interrupted.

II. We Affirm the District Court’s Determination That the 

Hollands’ Prescriptive Use Was Adverse Rather Than Permissive

¶50 The Harrisons also argue that the district court erred on 

summary judgment because any use of the road by the Hollands 

was done with the permission of the original owner of the 

Harrisons’ lot. But the record evidence does not support this 

argument.

¶51 Where a prescriptive user “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.”37 But the landowner may rebut this presumption 

by showing that “the use was initially permissive.”38 The 

__________________________________________________________

36 Id.; see also id. (explaining that a “dismissed or abandoned 

action, however, does not toll the running of the statute of 

limitations”). We note, of course, that landowners are free to 

defend their property rights through any appropriate legal 

avenue, including by requesting a preliminary injunction at the 

beginning of litigation.

37 Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998).

38 Id. at 312 (emphasis added).
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Opinion of the Court

17

Harrisons assert that the use in this case was initially permissive, 

so they have rebutted the presumption of adverseness. In support 

of this assertion, they point to the declaration of Janice Hawley

(now Janice Gustafson), who owned the property when the road 

was built. But, after considering the undisputed evidence on 

record, we conclude the Harrisons fail to rebut the presumption of 

adverseness. They fail for two reasons.

¶52 First, it is undisputed that the road was created by 

Manuel Torres, the Hollands’ predecessor-in-interest, without 

Ms. Hawley’s knowledge or authority. Although Ms. Hawley

states, in her declaration, that the road was used “pursuant to 

permission from [her],” she also admits that she “neither knew of 

nor authorized the creation of the road in advance.” So the record 

clearly demonstrates that the road was created and initially used 

by the Hollands’ predecessor-in-interest without Ms. Hawley’s 

permission.

¶53 And there is no evidence that Mr. Torres or the Hollands 

ever accepted Ms. Hawley’s permission. As our discussion of the 

“continuous” element above demonstrates, a landowner’s later 

grant of permission does not interrupt a prescriptive period 

unless the prescriptive user accepts the permission and thereby 

submits to the ownership of the landowner.39 Because the record 

clearly demonstrates that the initial use of the property was 

adverse to Ms. Hawley’s rights and there is no evidence 

suggesting that Mr. Torres or the Hollands accepted Ms. Hawley’s 

permission, Ms. Hawley’s testimony does not rebut the 

presumption of adverseness.40

__________________________________________________________

39 RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.16 cmt. f (AM.

LAW INST. 2000) (“A use that begins as adverse can be converted 

to a permissive or subordinate use if the user agrees to accept a 

license from the landowner, or if the user acts in such a way that 

the ordinary landowner would believe that the user has accepted 

the grant of a license to use the land.”); id. § 2.17 cmt. j (explaining 

that “the grant of permission to the prescriptive user” does not 

cause “an interruption unless the user submits to the title of the 

landowner by accepting the license offered”).

40 Because there is no evidence that Mr. Torres accepted 

Ms. Hawley’s permission, her “permission” is better characterized 

as acquiescence, which cannot rebut the presumption of 

(Continued)
HARRISON v. SPAH FAMILY LTD.

Opinion of the Court

18

¶54 Second, the Harrisons have failed to rebut the 

presumption because it is undisputed that Ms. Hawley authorized 

Mr. Torres to use the road only “to take prospective purchasers to 

the property for marketing purposes.” But there is no evidence the 

Harrisons have ever used the road for marketing purposes or 

sought permission to use the easement for that purpose. So even if 

Ms. Hawley had given Mr. Torres permission to use the road for 

marketing purposes before he had begun using the road (and 

Mr. Torres accepted that permission), that would not have made 

the Hollands’ subsequent use (beginning on August 9, 1996) for 

residential access permissive. So Ms. Hawley’s grant of 

permission for marketing purposes is irrelevant in this case.

¶55 Because the evidence in Ms. Hawley’s declaration fails to 

rebut the presumption of adverseness created by the Hollands’ 

open and continuous use of the easement for twenty years, we 

affirm the district court’s decision regarding adverseness.

III. We Hold That the Jury Instruction Was Erroneous 

¶56 The Harrisons also argue that one of the jury instructions 

was erroneous because the instruction failed to instruct the jury 

that the scope of the easement was limited to its historical use. We 

agree.

¶57 As we explain in our decision in SRB Investment Co. v. 

Spencer,

41 a prescriptive easement is defined by its type (or 

purpose) and by its scope. The type of easement should be 

defined broadly by the purpose for which it was historically used

during the prescriptive period. In this case, the historical purpose 

of the easement was to access the Hollands’ property. In contrast, 

a prescriptive easement’s scope should be defined with 

particularity based on the nature or extent of that historical use.42

The historical purpose and scope of the prescriptive use limit both 

 

adverseness. See Judd v. Bowen, 2017 UT App. 56, ¶ 25, 397 P.3d 

686 (explaining that “mere acquiescence” does not rebut the 

presumption of adverseness).

41 2020 UT 23, ¶ 10, ---P.3d---.

42 Id.
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Opinion of the Court

19

the extent of the easement right granted as well as the physical 

boundaries of the easement itself.43

¶58 The historical purpose for which an easement was used 

limits the prescriptive right because an easement “for one purpose 

gained by user cannot be turned into a[n] [easement] for another 

purpose if the latter adds materially to the burden of the servient 

estate.”44 And the historical scope of an easement limits the 

prescriptive right because the prescriptive right “cannot be 

enlarged to place a greater burden or servitude” on the servient 

estate.45 In other words, the scope of a prescriptive easement is 

limited by the burden historically imposed on the servient estate 

during the prescriptive period.46 For this reason, the prescriptive 

__________________________________________________________

43 Whitesides v. Green, 44 P. 1032, 1033 (Utah 1896); see also Big 

Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148, 158 (Utah 1946) 

(“It is elementary that the use of an easement must be as 

reasonable and as little burdensome to the servient estate as the 

nature of the easement and its purpose will permit.” (emphases 

added) (citation omitted)).

44 Nielson v. Sandberg, 141 P.2d 696, 701 (Utah 1943) (citation

omitted).

45 Id. (“The use during the prescriptive period is the only 

indication of the nature and extent of the right acquired. The 

servient estate can only be subjected to the easement to the extent 

to which the easement was acquired, and the easement owner 

cannot change this use so as to put any greater burden upon the 

servient estate.” (citation omitted)).

46 In SRB Investment Co., we discussed factors that are relevant 

in defining the scope of a prescriptive easement. 2020 UT 23, ¶ 38. 

We explained that in almost every case courts should consider 

“the physical dimensions of the prescriptive use, the frequency 

and intensity of the use, and the effect of the use on the aesthetic 

and economic value of the property.” Id. We also explained that 

“courts may also consider the subjective purpose for using the 

easement, as well as the nature of the use of the dominant estate, 

but only to the extent those factors are helpful in determining the 

nature of the burden on the servient estate.” Id. Finally, we 

explained that, “in determining the scope of a prescriptive right, 

courts should take a flexible approach that permits changes of use 

(Continued)
HARRISON v. SPAH FAMILY LTD.

Opinion of the Court

20

user may not acquire a right that “places a greater burden on the 

[landowner]” than was placed through the entirety of the 

prescriptive period.47 With these principles in mind, it is clear that 

the instruction in this case failed to properly instruct the jury 

regarding the scope of the easement because it allowed the jury to 

define the scope of the easement in a way that imposed a greater 

burden on the Harrisons’ property than had been imposed 

historically.

¶59 Jury instruction number twenty-seven, the instruction at 

issue in this case, informed the jury that all “elements of a claim of 

prescriptive easement” had been met, and that the Hollands had 

acquired a prescriptive easement across the Harrisons’ property 

“to access their own property.” The instruction then stated the 

following:

What remains for [the jury] to decide is the width of 

the easement that is necessary for the [Hollands] to 

access their property. [The jury] ha[s] heard 

testimony about the nature of the roadway during 

the 20 years of use, as well as a survey of the current 

shape and location of the roadway.

[The jury] should determine what is reasonably 

necessary, from the facts and circumstances of this 

case, for [the Hollands] to access their property, 

taking into account the historic[al] use and shape of 

the roadway during its 20 years of use. [The jury] 

may express [its] decision in terms of the survey, or 

by determining the width of the easement.

This instruction errs because it treats the nature and extent of the 

twenty-year historical use as a factor in determining the scope of 

the easement, rather than as the ultimate question to be decided. It 

does this in both instances where historical use is mentioned.

¶60 First, the instruction reminds the jury that they “heard 

testimony about the nature of the roadway during the 20 years of 

use, as well as a survey of the current shape and location of the 

roadway.” In this way, the instruction placed evidence of 

 

so long as those changes do not materially burden the servient 

estate or materially interfere with the prescriptive right.” Id.

47 Big Cottonwood Tanner Ditch Co., 174 P.2d at 164.
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Opinion of the Court

21

historical use on equal terms with evidence of “the current shape 

and location of the roadway.” This distorted the jury’s task and 

suggested that it could grant an easement exceeding the historical

scope of use (and the burden imposed on the Harrisons’ property)

if it believed it “necessary” to access the Hollands’ property.

¶61 Second, the instruction requires the jury to “determine 

what is reasonably necessary . . . for [the Hollands] to access their 

property, taking into account the historic[al] use and shape of the 

roadway during its 20 years of use.” Again, this language 

distorted the jury’s task. It did so by treating the historical nature 

of the use merely as a factor in the scope analysis rather than the 

ultimate question to be decided.

¶62 So the jury instruction in this case is erroneous because, 

rather than requiring the jury to determine what was reasonably 

necessary for the Hollands to continue their historically established 

use, it required the jury to determine what was reasonably 

necessary for the Hollands to access their property, with historical 

use being just one factor in that determination. And this error 

prejudiced the Harrisons.

¶63 Although it is unclear from the record how wide the road 

in this case was at the beginning of the prescriptive period, it is 

clear that the road was expanded somewhat in 2008. This 

indicates that the width of the road at the time of trial was wider 

than the “historical” width of the road. Despite this evidence, the 

jury appears to have awarded the Hollands an easement that is 

wider even than the width of the road at the time of trial.48 And, 

on the special verdict form, the jury stated that it felt this width 

was appropriate so that it would be “consistent with other 

easements in [the] Subdivision.” This suggests that the jury’s 

prevailing concern was to find a “reasonable” width rather than a 

width that would reasonably allow the Harrisons to continue their 

“historical” use.

__________________________________________________________

48 Mr. Harrison estimated the width of the road in 2016 to be 

about thirty feet, but the jury awarded an easement forty feet 

wide.
HARRISON v. SPAH FAMILY LTD.

Opinion of the Court

22

¶64 Accordingly, we hold that the jury instruction was 

erroneous and that the error prejudiced the Harrisons. For this 

reason, we remand for a new trial with a corrected instruction.49

IV. We Affirm the District Court’s Decision to Admit Testimony 

of the Hollands’ Expert

¶65 Next, the Harrisons argue the district court erred in 

admitting testimony of the Hollands’ retained expert, Mr. Blake. 

They argue that Mr. Blake’s testimony should have been 

excluded, under rule 702 of the Utah Rules of Evidence, because 

Mr. Blake had failed to reliably apply his expertise to the facts of 

this case. They also argue that the district court should have 

excluded Mr. Blake’s testimony, under rule 401 of the Utah Rules 

of Evidence, because it was irrelevant. But after considering the 

record evidence, we conclude that the district court did not abuse 

its discretion in finding that Mr. Blake had reliably applied his 

__________________________________________________________

49 Additionally, we note that, in their brief, the Harrisons 

argue that the “reasonably necessary” language is unsupported 

by and contrary to law. Although we agree that, as it was used in 

this case, the “reasonably necessary” language did not correctly 

describe the law, we disagree that this language, when used in the 

proper context, is unsupported by our case law.

We have explained that in some cases the scope of a 

prescriptive easement is a “question of reasonable necessity.” Id.

at 158 (noting that while the “substance of the easement is shown 

by the usage,” “the form [of the easement] is a question of 

reasonable necessity”). But a determination of “reasonable 

necessity” need only be made in cases where there is no better

evidence of the nature and extent of the historical use of the 

easement. So, for example, in a case where a prescriptive user has 

historically used a road across another’s property for the purpose 

of accessing a camping site with a truck and camping trailer, but 

the scope of the easement is unclear, the fact finder could properly 

determine the physical dimensions of the easement based on what 

would be reasonably necessary to transport a truck and camping 

trailer across the property. But in no event should such a 

determination lead the fact finder to find, as it appears to have

found in this case, that the width of the easement is wider than it

was at any point during the prescriptive period.
Cite as: 2020 UT 22

Opinion of the Court

23

expertise to the facts in this case and in finding that the evidence 

was relevant.

A. Mr. Blake’s methods were reliably applied to the facts of this case

¶66 The district court did not abuse its discretion in finding 

that Mr. Blake reliably applied his expertise to the facts of this 

case. The Harrisons do not challenge Mr. Blake’s credentials as a 

land surveyor nor do they contend that his survey methodology 

was flawed or incorrectly performed when he visited the 

properties at issue. Instead, they argue that by measuring the 

scope and extent of the road, rather than the scope and extent of 

the prescriptive easement based on historical use, Mr. Blake did 

not reliably apply his methodology to the facts of this case. We 

disagree.

¶67 In 2016, Mr. Blake performed a survey of the road 

crossing the Harrisons’ property. At trial, Mr. Blake testified 

regarding this survey. In other words, Mr. Blake testified 

regarding the dimensions of the road crossing the Harrisons’ 

property in 2016. Significantly, Mr. Blake did not purport to 

testify regarding the historical dimensions of the road. Rather, his 

testimony was limited to describing the process by which he 

surveyed the road in 2016. In fact, he informed the jury that he 

had not looked at historical photographs of the road, had not seen 

the road in the past, and did not “have any information at all on 

where that road went or how big it was in 1996.” Thus, 

Mr. Blake’s expert testimony was limited to providing evidence 

regarding the dimensions of the road in 2016.

¶68 The Harrisons argue that Mr. Blake’s testimony was 

unreliably applied to the facts of this case because he made no 

attempt to adjust the measurements of his 2016 survey “based on 

representations or evidence from any source concerning the 

original scope and course of the roadway.” But this argument 

appears to be based on a key misunderstanding of Mr. Blake’s 

expert testimony: Mr. Blake testified regarding the dimensions of 

the road in 2016, not the dimensions of the prescriptive easement

based on its historical use. The dimensions of the road presented a 

factual question to which Mr. Blake’s expert testimony provided 

valuable insight. But the dimensions of the prescriptive easement 

presented a legal question for the jury to answer pursuant to the 

legal instructions provided by the district court.

¶69 In challenging Mr. Blake’s testimony for failing to 

account for the historical usage of the road, the Harrisons suggest 
HARRISON v. SPAH FAMILY LTD.

Opinion of the Court

24

that the only admissible purpose of Mr. Blake’s testimony would 

have been to opine on the ultimate issue to be decided in the case. 

This is incorrect. An expert witness is not required to offer an 

opinion directly on the ultimate issue in the case.50 And, as we 

discuss in subsection B, Mr. Blake’s testimony regarding the 

physical dimensions of the road in 2016 provided helpful 

information to the jury. So, by offering evidence of the physical 

dimensions of the road as it existed in 2016, Mr. Blake’s testimony 

was not unreliably applied to the facts of this case.

B. Mr. Blake’s methods were relevant under the permissive standard of 

rule 401 of the Utah Rules of Evidence

¶70 The district court also did not abuse its discretion in 

finding, under rule 401, that Mr. Blake’s testimony was relevant. 

The Harrisons argue that Mr. Blake’s testimony regarding the 

physical dimensions of the road is “of no consequence in 

determining the scope of a prescriptive right which, by law, must 

have ripened (if at all) during a 20-year period preceding the 

filing of this lawsuit.” But this argument fails because evidence 

regarding the scope and extent of the road at the end of the 

twenty-year prescriptive period is relevant under rule 401.

¶71 Under rule 401, evidence is relevant if “it has any 

tendency to make a fact more or less probable than it would be 

without the evidence” and “the fact is of consequence in 

determining the action.” This presents a “very low bar” for the 

admission of evidence.51 And under this low bar, evidence 

regarding the scope and extent of the road at the end of the 

twenty-year prescriptive period is relevant to the ultimate issue in 

this case.

¶72 In this case, the ultimate issue is the scope of the 

Hollands’ prescriptive easement. To assist the jury in making this 

determination, the parties presented evidence regarding the 

physical dimensions of the easement at the beginning, in the 

middle, and at the end of the prescriptive period. Included in this 

__________________________________________________________

50 In fact, as we discuss in Part V of this opinion, expert 

testimony may be excluded if it crosses the line into impermissible 

legal opinion.

51 State v. Richardson, 2013 UT 50, ¶ 24, 308 P.3d 526 (internal 

quotation marks omitted).
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Opinion of the Court

25

evidence was testimony that the road had been expanded at some 

point during the twenty-year prescriptive period. Because the 

road had been expanded, Mr. Blake’s testimony regarding the 

physical dimensions of the road at the end of the twenty-year 

period could not reliably provide the sole basis for the jury’s 

determination regarding the scope of the easement. But this does 

not mean that Mr. Blake’s testimony did not provide any relevant 

information to the jury.

¶73 While Mr. Blake’s testimony may be of limited relevance 

when compared to more direct evidence regarding the scope of 

the easement at the beginning and in the middle of the 

prescriptive period, it nevertheless overcomes the low bar for 

relevance under rule 401. The testimony is relevant because it 

provided the jury with the upper limits of the permissible scope of 

the easement. In other words, by testifying about the physical 

dimensions of the road across the Harrisons’ property in 2016, 

Mr. Blake provided the jury with a clear limit to what it could find 

regarding the width of the prescriptive easement. In this way, 

Mr. Blake’s testimony regarding the scope of the road in 2016 

provided probative information regarding a fact that was of 

consequence in the litigation. Accordingly, the district court did 

not abuse its discretion in finding Mr. Blake’s testimony to be 

relevant.

¶74 In sum, we affirm the district court’s decision to admit 

Mr. Blake’s expert testimony because the court did not abuse its 

discretion in finding Mr. Blake’s testimony reliable and relevant.

V. We Affirm the District Court’s Decision to Exclude Testimony 

of the Harrisons’ Rebuttal Expert

¶75 Finally, the Harrisons argue the district court erred in 

excluding the rebuttal testimony of their expert, Mr. Bunker. Once 

again, we disagree.

¶76 In reviewing “the exclusion of evidence, we grant a trial 

court broad discretion to admit or exclude evidence and will 

disturb its ruling only for abuse of discretion.”52 And we will not 

find that a district court abused its discretion “unless the ruling 

__________________________________________________________

52 Ferguson v. Williams & Hunt, Inc., 2009 UT 49, ¶ 43, 221 P.2d 

205 (citation omitted).
HARRISON v. SPAH FAMILY LTD.

Opinion of the Court

26

was beyond the limits of reasonability.”53 In this case, the court 

excluded Mr. Bunker’s testimony because it found the testimony 

would usurp the court’s role in instructing the jury regarding the 

scope of a prescriptive easement. We cannot say this ruling went 

beyond the limits of reasonability.

¶77 In the Harrisons’ expert designation for Mr. Bunker, they 

stated that Mr. Bunker would testify “to the procedure for 

determining the location of a prescriptive easement.” At trial, the 

Harrisons explained that the purpose of Mr. Bunker’s testimony 

would be to point out that “Mr. Blake’s survey was not based on 

historic[al] use of the easement claimed by [the Hollands].” And 

in their brief, they explain that “Mr. Bunker was prepared to 

address, as a qualified land surveyor whose credentials matched 

Mr. Blake’s own, why Mr. Blake’s approach to establishing the 

centerline of the supposed prescriptive easement was flawed.”

¶78 As with their argument regarding the admissibility of 

Mr. Blake’s expert testimony, this argument appears to be based 

on a key misunderstanding of this testimony. As we discussed 

above, Mr. Blake testified regarding the dimensions of the road in 

2016, not the dimensions of the prescriptive easement based on its 

historical use. So the dimensions of the road presented a factual 

question to which Mr. Blake’s expert testimony provided valuable 

insight, but the dimensions of the prescriptive easement presented a 

legal question for the jury to answer based on the legal 

instructions provided by the district court. Because the Harrisons 

repeatedly state that Mr. Bunker would testify regarding the 

dimensions of the prescriptive easement, rather than the 

dimensions of the road, it is reasonable to conclude that 

Mr. Bunker’s testimony might usurp the court’s role in instructing 

the jury regarding the legal requirements of prescriptive 

easements. This provides adequate ground for exclusion.

¶79 We have explained that “[o]pinion testimony is not 

helpful to the fact finder when it is couched as a legal conclusion. 

These extreme expressions of the general belief of the expert 

witness tend to blur the separate and distinct responsibilities of 

the judge, jury, and witness.”54 Because the Harrisons’ statements 

__________________________________________________________

53 Id. (citation omitted) (internal quotation marks omitted).

54 Steffensen v. Smith’s Mgmt. Corp., 862 P.2d 1342, 1347 (Utah 

1993).
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Opinion of the Court

27

regarding the purpose of Mr. Bunker’s testimony suggest that 

Mr. Bunker would have couched his testimony in legal terms, it 

was reasonable for the court to find that the purpose of 

Mr. Bunker’s testimony was to instruct the jury regarding what 

could and could not be considered as part of the jury’s 

prescriptive easement determination. For this reason, the court 

did not err in concluding that Mr. Bunker’s testimony would 

usurp its role in providing those instructions.

Conclusion

¶80 Because the district court did not err, on summary 

judgment, in ruling that a prescriptive easement had formed, we 

affirm its summary judgment decision. Additionally, we affirm 

the district court’s decisions regarding the admissibility of the 

parties’ respective expert witnesses because neither decision 

constituted an abuse of discretion. But, because the court 

incorrectly instructed the jury regarding the scope of the 

prescriptive easement, we remand for a new trial with a correct 

jury instruction.