This opinion is subject to revision before final

publication in the Pacific Reporter

2017 UT 16

IN THE

SUPREME COURT OF THE STATE OF UTAH

STICHTING MAYFLOWER MOUNTAIN FONDS and STICHTING MAYFLOWER 

RECREATION FONDS,

Appellants,

v.

UNITED PARK CITY MINES COMPANY, REDUS PARK CITY LLC, EMPIRE 

PASS MASTER OWNERS ASSOCIATION, INC., and RED CLOUD 

HOMEOWNERS ASSOCIATION,

Appellees.

No. 20150047

Filed March 22, 2017

On Direct Appeal

Third District, Silver Summit 

The Honorable Ryan M. Harris

No. 050500430

Attorneys:

Craig C. Coburn, Steven H. Bergman, Brad M. Liddell, 

Salt Lake City, for appellants

Clark K. Taylor, Nicole M. Deforge, Salt Lake City, for appellees

ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court, in 

which CHIEF JUSTICE DURRANT, JUSTICE DURHAM, JUSTICE HIMONAS, 

and JUSTICE PEARCE joined.

ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:

¶1 This case involves a dispute over a mining road built on 

Flagstaff Mountain (near Park City) over a century ago. The 

plaintiffs are Stichting Mayflower Mountain Fonds and Stichting 

Mayflower Recreation Fonds (collectively “Mayflower”). Defendants 

in the suit are owners of land traversed by the road. 

¶2 Plaintiffs have asserted a right to use the road (1) as a public 

highway under the Mining Act of 1866 (R.S. 2477) and the 1880 Utah 
STICHTING MAYFLOWER v. UNITED PARK CITY 

Opinion of the Court

2

Highway Act, and (2) under a common law prescriptive easement

claim. In a motion to amend their complaint, plaintiffs also sought to 

add an appurtenant easement claim.

¶3 The district court dismissed Mayflower’s public roads and 

prescriptive easement claims on summary judgment. It also denied 

Mayflower’s motion for leave to file a second amended complaint.

We affirm.

¶4 Mayflower’s public roads claim fails because Mayflower has 

not presented sufficient evidence of the road’s “public use” for a 

sufficient period of time. The common law prescriptive easement 

claim also fails because the evidence and arguments presented by 

Mayflower on appeal were not preserved in the district court below. 

Finally, as to the denial of Mayflower’s motion for leave to file a 

second amended complaint, we affirm in light of the substantial 

discretion afforded district courts under rule 15(a) of our Rules of 

Civil Procedure.

I

¶5 Mayflower is the successor to a chain of title to mining claims 

dating from 1871 on Flagstaff Mountain near Park City. According to 

Mayflower, historical records from the predecessor of the Bureau of 

Land Management show that prospectors and mine claimants built 

two miles of road from Park City to the mine in or around 1871. 

These claimants were granted a mining patent, and thus ownership 

to the mine and rights of access to their claims.

¶6 Notes kept by prospectors from nearby mines refer to a 

wagon road heading south from Park City to the mines. The

historical record does not tell us who built the road. But it seems a 

fair inference that the road was built by the Flagstaff mine claimants; 

the record identifies no one else who likely would have constructed 

it.1

¶7 Mayflower seeks to trace the “public use” of the road in 

question to 1871. It notes that prospectors began using the road to 

access Flagstaff Mountain at that time. And it claims that public use 

continued uninterrupted until 2006, when a new subdivision (Red 

 

1 The parties disagree on the precise location of the mining road 

in the 1870s and 1880s. They also have different views on whether 

the road now at issue is the same as the one referred to in the 

historical record. But those disputes are immaterial in light of our 

disposition of the case.
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Opinion of the Court

3

Cloud) “obliterated” parts of the road. This use, in Mayflower’s 

view, turned the road into a public highway, conferring rights on 

Mayflower (and the public generally) to use it.

¶8 Mayflower asserted such rights in this litigation. It filed its 

initial complaint in late 2005. That complaint formally appears to 

have raised only a common law prescriptive easement claim (though 

Mayflower insists that other claims were asserted implicitly).

¶9 The case languished for a time. After the parties filed their 

initial pleadings, there was no activity on the case for about a year 

and a half. This led the district court to order the parties to appear 

and explain why the case should not be dismissed. But the district 

court did not dismiss the case. Instead it noted that it anticipated a 

request for a hearing on a motion for preliminary injunction would 

be filed within sixty days. And it allowed the case to move forward 

on the basis of that expectation.

¶10 For the next two years the only activity in the case was a 

single deposition. In June 2009, the district court again ordered the 

parties “to show cause why this case should not be dismissed.” Order 

to Show Cause, June 25, 2009. And again the case was not dismissed. 

Instead it was consolidated with a similar pending suit—a suit 

brought by Silver Cloud Properties seeking an easement over a 

roadway that crossed property owned by United Park City and that 

connected Silver Cloud’s property with the highway.

¶11 A little over a year later Mayflower moved to amend its 

complaint, seeking to clarify “that plaintiff’s rights include the right 

of use of public roads which extend to roads in which plaintiff’s 

rights may be prescriptive.” Memorandum in Support of Motion to 

Amend, December 22, 2010 at 2. The district court granted 

Mayflower’s motion. In the amended complaint Mayflower 

“claim[ed] a right to a prescriptive easement over and across the 

Easement Property on the Easement Roads, and as a beneficiary of 

the public rights-of-way.” Amended Complaint, December 22, 2010 at 4. 

¶12 The defendants filed a motion for partial judgment on the 

pleadings, asserting that Mayflower had “failed to state a claim that 

any property at issue is a dedicated public road.” Motion for Partial 

Judgment on the Pleadings, December 22, 2011 at 2. The district court 

denied the motion. But the court sua sponte ordered Mayflower to 

“make full and complete disclosures of their claims and evidence in 

this case.” Order Denying Motion for Partial Judgment, March 8, 2012 at 

2. And the court warned that failure to do so “shall result in 

[Mayflower] being unable to use the individual, document, or 

evidence in further proceedings.” Id. This was because the district 

court found Mayflower’s claims to be “somewhat cryptic in nature,”
STICHTING MAYFLOWER v. UNITED PARK CITY 

Opinion of the Court

4

and thus “d[id] not put [defendants] on adequate notice regarding 

what [was] claimed.” Id. The March 2012 district court order also 

required Mayflower to “provide the specific statute or case law they 

allege supports their claim to a public or private road,” with failure 

to do so “result[ing] in [Mayflower] being unable to proceed with 

their claim.” Id. at 3.

¶13 Mayflower’s disclosures included at least a common-law 

prescriptive easement claim and a public road claim under a 

longstanding federal statute (the federal Mining Act of 1866, or more 

commonly, R.S. 2477).2 The parties disagree on whether the claims 

 

2 Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251, 253, codified at 43 

U.S.C. § 932, repealed by Federal Land Policy Management Act of 

1976 (FLPMA), Pub. L. No. 94–579 § 706(a), 90 Stat. 2743. R.S. 2477 

was enacted one year after the Civil War ended. It was designed to 

“promote[] the development of the unreserved public lands and 

their passage into private productive hands.” S. Utah Wilderness All. 

v. Bureau of Land Mgmt. (SUWA), 425 F.3d 735, 740 (10th Cir. 2005), as 

amended on denial of reh’g (Jan. 6, 2006). Thus, “R.S. 2477 rights of way 

were an integral part of the congressional pro-development lands 

policy.” Id. at 740–41. 

The statute was repealed in 1976, through enactment of the 

Federal Land Policy Management Act of 1976 (FLPMA). Pub. L. No. 

94–579 § 706(a), 90 Stat. 2743. Yet FLPMA still preserved a party’s 

ability to seek recognition of an R.S. 2477 road going forward—so

long as it was based on activity taking place prior to FLPMA’s 

enactment (on October 21, 1976). Pub. L. No. 94–579 § 701(a), 90 Stat. 

2743, 2786 (“Nothing in this Act, or in any amendment made by this 

Act, shall be construed as terminating any valid . . . right-of-way . . .

existing on the date of approval of this Act.”); see also SUWA, 425 

F.3d at 741 (describing FLPMA as having “the effect of ‘freezing’ R.S. 

2477 rights as they were in 1976”). Thus, FLPMA preserved the 

viability of R.S. 2477 looking backward. It recognized that a public 

road could be established based on activity that took place while R.S. 

2477 was still on the books. Pub. L. No. 94–579 § 509(a), 90 Stat. 2743, 

2781 (“Nothing in this title shall have the effect of terminating any 

right-of-way or right-of-use heretofore issued, granted, or 

permitted.”). The premise of this regime is the idea that R.S. 2477 

rights are established without formal legal action (like a court filing 

and order). See infra ¶ 26 & n.3. Because an R.S. 2477 road could be 

established without such action, FLPMA allows a claimant to prove 

that such a road was established based on activity before the date of 

(continued . . .)
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Opinion of the Court

5

extend further. Mayflower contends that it also included claims for 

an appurtenant easement and for private right of access.

¶14 Defendants filed a motion for summary judgment, asserting 

that (1) Mayflower cannot prove as a matter of law that the roads 

crossing defendants’ land were established as public roads; and (2) 

Mayflower cannot prove the requirement of adverse use, which is 

necessary for a prescriptive easement claim. The district court ruled 

on that motion in an order issued in August 2012. In that order, the 

court granted the motion as to the prescriptive easement claim but 

denied it on the public road claim. (Nowhere in the district court’s 

order, or in either party’s summary judgment briefing, is there any 

discussion of any other claims.)

¶15 After the entry of this order, additional defendants were 

allowed to intervene, Mayflower’s counsel withdrew and was 

replaced, and the district court re-opened discovery for all parties. 

During that discovery, in early 2014, a defense expert asserted (in a

deposition) that Mayflower’s two easement claims, including the 

appurtenant easement claim, were no longer part of the case due to

the district court’s August 2012 order. In response, Mayflower filed a 

motion for leave to file a second amended complaint. And in the 

memorandum in support of the motion Mayflower argued that the

complaint would not put forth new theories or claims, but merely 

clarify those already proffered.

¶16 The district court denied Mayflower’s motion on two 

independent grounds. First, it concluded that the amendment was 

not appropriate under the standard set forth in Utah Rule of Civil

Procedure 15(a) because Mayflower had waited so long to add these 

claims and lacked a good explanation for the delay. Second, the

court held that two new claims—appurtenant easement and private 

right of access—were barred by the court’s earlier (March 2012) 

order because Mayflower had not identified these claims in its 

pretrial disclosures required by that order. 

 

the R.S. 2477 repeal. Pub. L. No. 94–579 § 509(a), 90 Stat. 2743, 2781 

(allowing a right-of-way to continue after FLPMA if it had been 

previously “granted”); see also Bret C. Birdsong, Road Rage and R.S. 

2477: Judicial and Administrative Responsibility for Resolving Road 

Claims on Public Lands, 56 HASTINGS L.J. 523, 531 (2005) (noting that 

“[c]ourts and federal agencies have long considered R.S. 2477 to be a 

self-effectuating grant,” and thus public roads “arise by operation of 

law at the time the factual conditions of the R.S. 2477 grant are 

satisfied”).
STICHTING MAYFLOWER v. UNITED PARK CITY 

Opinion of the Court

6

¶17 Both Mayflower and the defendants filed motions for 

summary judgment on the last remaining claim—the one relating to 

public roads. The district court denied Mayflower’s motion and 

granted defendants’ motion. 

¶18 Mayflower filed this appeal. It challenges the dismissal of its 

prescriptive easement and public roads claims on summary 

judgment and the denial of its motion to file a second amended 

complaint.

¶19 Mayflower has also challenged the standing of one of the 

defendants—United Park City Mines Company—to defend the 

district court’s judgment on this appeal. Mayflower notes that 

United Park City sold some of the property in question while this 

case was pending on appeal. It claims that this transaction divested 

Mayflower of any remaining interest in the roads that are the subject 

of this appeal. And because the roads allegedly traverse property 

now owned not by United Park City but by REDUS Park City LLC

(REDUS), Mayflower asserts that United Park City no longer has 

standing to participate further in this appeal. It also has raised the 

question whether REDUS should be substituted for United Park City

under Utah Rule of Appellate Procedure 38(c).

¶20 We entered an order directing the substitution of REDUS for 

United Park City in part—“to the extent REDUS now owns property 

previously held by [United Park City].” Order, April 1, 2016. In 

addition, we asked REDUS to clarify whether it intended to be 

represented by counsel for United Park City and to adopt the briefs 

submitted by United Park City. REDUS subsequently indicated an 

intent to step into United Park City’s shoes “with respect to the 

properties” sold by United Park City to REDUS. Motion, April 5, 

2016. And counsel made an appearance and argued for both 

appellees.

¶21 The above moots the standing issue raised by Mayflower. 

Because REDUS adopted United Park City’s briefing in this case, and 

because the same counsel appeared and represented the interests of 

both appellees at oral argument, we see no need to sort through the 

record to determine whether or to what extent the property still 

owned by United Park City is implicated by this appeal. Both 

REDUS and United Park City are represented by the same counsel 

and advance the same arguments on this appeal. So we need not 

decide whether and to what extent one or the other of these 

appellees may have standing to defend the judgment before us on 

appeal because all of the relevant property is owned by one or the 

other of the two and both appellees advance the same arguments on 

appeal.
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Opinion of the Court

7

¶22 We accordingly proceed to the merits. In so doing we review 

the decision on summary judgment de novo. See Bahr v. Imus, 2011 UT 

19, ¶ 16, 250 P.3d 56. As to the decision denying the motion to file a 

second amended complaint, our review is for an abuse of discretion. 

See Fishbaugh v. Utah Power & Light, 969 P.2d 403, 405 (Utah 1998).

II

¶23 Mayflower challenges the dismissal of its public roads and 

prescriptive easement claims on various grounds. It challenges the 

district court’s dismissal of these claims on summary judgment on 

the basis of a range of alleged legal errors and genuine issues of 

material fact. It also claims error regarding the decision denying the 

motion for leave to amend. 

¶24 We affirm. First, we conclude that the public roads claim fails 

as a matter of law because Mayflower does not and cannot come 

forward with evidence establishing that the road was in public use 

for the time period required by law. Second, we affirm the dismissal 

of the prescriptive easement claim on preservation grounds—

concluding that the grounds for challenging summary judgment on 

appeal were not properly presented to the district court below. 

Third, we affirm the denial of the motion for leave to amend as 

falling within the district court’s range of discretion.

A. R.S. 2477

¶25 Mayflower’s public roads claim arises under the Mining Act 

of 1866, often referred to as R.S. 2477. That act opened up “mineral 

lands [in] the public domain” to be freely “explor[ed] and 

occup[ied]” by any U.S. citizen, or those who have “declared their 

intention to become citizens.” R.S. 2477, § 1. To that end, it granted 

the “right of way for construction of highways over public lands.” Id. 

§ 8.

¶26 R.S. 2477 is no longer on the books. It was repealed in 1976 

by the Federal Land Policy Management Act (FLPMA). Pub. L. No. 

94–579 § 706(a), 90 Stat. 2743. Yet R.S. 2477 still rules us from its 

grave. It does so, as noted above, in light of the nature of the 

establishment of an R.S. 2477 right. See supra ¶ 13 n.2. Such a right 

attaches automatically on the basis of activity sufficient to establish a 

public road. No formal adjudication, deed, application, or license is 

required.3 Thus, an R.S. 2477 right may be recognized even today. If 

 

3 See S. Utah Wilderness All. v. Bureau of Land Mgmt. (SUWA), 425 

F.3d 735, 741 (10th Cir. 2005) (“Unlike any other federal land statute 

of which we are aware, the establishment of R.S. 2477 rights of way 

(continued . . .)
STICHTING MAYFLOWER v. UNITED PARK CITY 

Opinion of the Court

8

a plaintiff can show the existence of a public road based on activity 

prior to October 21, 1976 (the date of FLPMA’s enactment), then a 

court may recognize the existence of a road under R.S. 2477.4

¶27 The terms and conditions for establishing a public highway 

are largely “‘borrow[ed]’ from long-established principles of state 

law.” SUWA, 425 F.3d at 768. Thus, R.S. 2477 does not prescribe a 

specific time period in which a road must be subject to public use in 

order to become a public highway as a matter of federal law. Instead, 

the requisite “public use” time period is dictated by state law, such 

that the time necessary to establish an R.S. 2477 public highway may 

differ from state to state, and may vary within a state as state law is 

amended from time to time.5

 

required no administrative formalities: no entry, no application, no 

license, no patent, and no deed on the federal side; no formal act of 

public acceptance on the part of the states or localities in whom the 

right was vested.”); Sierra Club v. Hodel, 848 F.2d 1068, 1083 (10th Cir. 

1988) (describing R.S. 2477 as “an open-ended and self-executing 

grant” (overruled on other grounds by Vill. Of Los Ranchos de 

Albuquerque v. Marsh, 956 F.2d 970 (10th Cir. 1992)); Lindsay Land & 

Live Stock Co. v. Churnos, 75 Utah 384, 285 P. 646, 648 (Utah 1929)

(observing that “[R.S. 2477] was a standing offer of a free right of 

way over the public domain,” and could be accepted “without 

formal action by public authorities” (citations omitted)).

4 See, e.g., U.S. DEP’T OF INTERIOR, REPORT TO CONGRESS ON R.S.

2477: THE HISTORY AND MANAGEMENT OF R.S. 2477 RIGHTS-OF-WAY 

CLAIMS ON FEDERAL AND OTHER LANDS 29 (1993) (indicating that in 

1993, nearly 1,500 R.S. 2477 claims had been recognized by courts or 

the Department, with another 5,600 claims remaining to be 

adjudicated, and an unknown number of potential claims that had 

yet to be asserted); Matthew L. Squires, Note, Federal Regulation of 

R.S. 2477 Rights-of-Way, 63 N.Y.U. ANN. SURV. AM. L. 547, 557 (2008) 

(“R.S. 2477 rights-of-way that perfected prior to FLPMA’s enactment 

are ‘grandfathered in’ and continue to be valid public easements, 

and the countless roads and trails crossing federal land that existed 

prior to 1976 are fair game to be claimed by states and counties as 

R.S. 2477 rights-of-way.”).

5 “In some states, the required period was the same as that for 

easements by prescription, in some states it was some other specified 

period, often five to ten years, and in some states it was simply a 

period long enough to indicate intention to accept.”SUWA, 425 F.3d 

at 771 (footnotes omitted).
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Opinion of the Court

9

¶28 The latter point is front and center here. The period of public 

use necessary to establish a public highway has been amended over 

time under Utah law. Before 1880, the matter was governed by the 

law of prescriptive easement. In this era, in other words, the only 

way to establish that a road had been subject to public use for long 

enough that it became a public highway was to establish the 

elements of a common law prescriptive easement. See Harkness v. 

Woodmansee, 26 P. 291, 292 (Utah 1891) (“The right to a public road 

. . . by prescription arises from the uninterrupted adverse enjoyment 

of it under a claim of right known to the owner for the requisite 

length of time.”).6 And such a claim required proof that a particular 

road was adversely and continuously used by the public for twenty 

years. Id. 

¶29 The legal landscape in Utah was altered by the 1880 

Highway Act. That statute, enacted in February 1880, provided that 

“all roads used as [highways] for a period of five years are highways.” 

1880 UTAH LAWS 51, Chapt. 29 (emphasis added). So for uses from 

February 1880 going forward, a claimant could establish the 

existence of a public highway on the basis of public use for five 

years. But the common law governed for uses before the enactment 

of the Highway Act, and public use for twenty years was the rule 

under the common law.

¶30 These time frames are crucial in this case. It is undisputed 

that a portion of the land traversed by the subject road became 

private property on October 13, 1881. That is the date the patent was 

issued on the so-called Home Station mining claim. Thus, no use 

beyond that date could be a public use that would count toward the 

establishment of a public highway. The full period of public use 

would have to have been completed before October 13, 1881.

 

6 See also SUWA, 425 F.3d at 769–70 (observing that “[u]nder the 

common law, the establishment of a public right of way required 

two steps: the landowner’s objectively manifested intent to dedicate 

property to the public use as a right of way, and acceptance by the 

public”; and thus concluding that the only “difficult question” in 

determining whether a public road had been created “was whether 

any particular disputed route had been ‘accepted’ by the public 

before the land had been transferred to private ownership or 

otherwise reserved” since “R.S. 2477 was uniformly interpreted by 

the courts as an express dedication of the right of way by the 

landowner, the United States Congress”).
STICHTING MAYFLOWER v. UNITED PARK CITY 

Opinion of the Court

10

¶31 We find no genuine issue of material fact on this question.

Specifically, we conclude that Mayflower has not identified evidence 

sufficient to show that either the twenty-year common law period or 

the five-year statutory period was fulfilled prior to October 13, 1881. 

¶32 The earliest date of any public use identified by Mayflower is 

1871—when the road in question allegedly was first built.7 But at 

that time the applicable time frame was that set forth in the common 

law—twenty years. And clearly the twenty-year clock never expired. 

As of October 1881 about half of the relevant time was still left on the 

clock.

¶33 Mayflower insists that the shorter statutory time frame 

should apply. And because it views the record as establishing more 

than five years of public use before October 1881, Mayflower claims 

that the road had become a public highway before the attempt at 

privatizing it in connection with the Home Station mining claim.

¶34 We assume, at least for the sake of argument, that the 1880 

Highway Act applies in the circumstances of this case. But we 

nonetheless reject Mayflower’s claim. We do so because we interpret 

the 1880 statute as applying only prospectively—or in other words 

as not altering the applicable twenty-year time frame in place prior 

to the statutory enactment. Nothing on the face of the statute, after 

all, suggests retroactive application. And the longstanding 

presumption is that statutes apply only prospectively. See Warne v. 

Warne, 2012 UT 13, ¶ 25, 275 P.3d 238 (noting that “we generally 

presume that a statute applies only prospectively”); Landgraf v. USI 

Film Prods., 511 U.S. 244, 265 (1994) (observing that “the presumption 

against retroactive legislation is deeply rooted in our jurisprudence, 

and embodies a legal doctrine centuries older than our Republic”). 

¶35 Mayflower’s claim fails on that basis. Before February 1880

the only relevant time frame was a twenty-year common law clock. 

That clock had not run out as of the date of enactment of the 1880 

Highway Act. By 1880, in fact, the record of public use had extended 

for only about nine years. A second potential time frame was added

with the enactment of the statute. This allowed Mayflower to satisfy 

either the common law or the statutory time period—whichever it 

could fulfill first. But because the statute had no retroactive 

 

7 There is a dispute between the parties on the year of the road’s 

construction. We give the benefit of the doubt on this point to 

Mayflower because we conclude that its claim fails as a matter of law 

even assuming that the road was completed as early as 1871.
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Opinion of the Court

11

application, the five-year clock that it imposed did not begin to run 

until February 1880 (when the statute was signed into law). And 

clearly the five-year clock did not expire before October 1881. When 

the patent on the Home Station mining claim was issued, the 

statutory clock on public use had been running for less than two 

years. And the common-law clock had been running for merely a 

decade—half of the required time.

¶36 We affirm summary judgment for defendants on that basis. 

We conclude that Mayflower failed to establish a genuine issue of 

material fact on the public use necessary to show that the road in 

question had become a public road under R.S. 2477.8 And we 

accordingly hold that the public roads claim fails as a matter of law.

B. Prescriptive Easement

¶37 Mayflower’s second claim arises under the common law. 

Under this count, Mayflower asserts that it has rights to use the road 

in question under the common law of prescriptive easement. 

¶38 Mayflower unquestionably asserted a prescriptive easement 

claim in its pleadings below. Yet defendants defend the dismissal of 

this claim on the ground that the evidence and authority advanced 

by Mayflower on appeal was never presented to the district court in 

the proceedings below.

¶39 We agree and affirm on that basis. The principal question 

presented on this claim is whether Mayflower had permission to 

access the road in question. Defendants sought dismissal of the 

prescriptive easement claim on the ground that evidence of 

Mayflower’s permission to use the road undermined the element of

adverse use necessary to establish a prescriptive easement.

 

8 In basing our decision on this ground, we stop short of 

addressing several grounds embraced by the district court and 

briefed by the parties on appeal. Those grounds include the 

requirement of proof of public use by “clear and convincing” 

evidence, the determination that “prospectors” were not relevant 

members of the “public” whose use counted toward establishing a 

public highway, and the conclusion that a single purpose road could 

not qualify as a public use. These are important questions, but we 

need not, and thus do not, resolve them here. Thus, we conclude that 

Mayflower’s claim fails as a matter of law even if it prevails on each 

of the grounds we do not reach—on the standard of proof, on 

whether prospectors count as relevant members of the public, and 

on whether a single purpose qualifies as public use.
STICHTING MAYFLOWER v. UNITED PARK CITY 

Opinion of the Court

12

¶40 In response, Mayflower generally opposed summary 

judgment on the prescriptive easement claim. And it cited some 

authority of relevance to the element of adverse use. See Heber City 

Corp. v. Simpson, 942 P.2d 307, 311 (Utah 1997); Morris v. Blunt, 161 P. 

1127, 1131 (Utah 1916). But there was no legal analysis in 

Mayflower’s opposition to the motion for summary judgment—no 

application of the governing law to the facts of the case. Mayflower 

cited no evidence and made no attempt to argue that the evidence 

presented by defendants established adverse use or undermined the 

inference of consent.

¶41 On appeal, by contrast, Mayflower presented extensive 

evidence and legal argument challenging defendants’ showing as to 

Mayflower’s permission. Yet virtually none of the evidence or 

authority presented on appeal was advanced by Mayflower in the 

district court. That is significant. Under rule 56 of the Utah Rules of 

Civil Procedure, Mayflower was required to identify evidence in the 

district court record that created a dispute of material fact.9 Yet it 

failed to do so. Instead of identifying facts that created a genuine 

dispute of fact, Mayflower proffered only abstract statements of its 

position. It simply asserted the following:

[Defendants] assert[] that Mayflower’s use of the roads in 

issue was not “adverse” because, long after a public or private 

road would have been established, [defendants] made no 

substantial effort to block such use. 

The gist of “adversity” is that the use was maintained under 

claim of right. Failure to block the use is not consent. 

Certainly, where the use is previously established by the 

public, or by prior private owners, failure to block the use is 

irrelevant.

 

9 The 2013 version of Utah Rule of Civil Procedure 56(e) states 

“[w]hen a motion for summary judgment is made and 

supported as provided in this rule, an adverse party may not 

rest upon the mere allegations or denials of the pleadings, but 

the response . . . must set forth specific facts showing that 

there is a genuine issue for trial. Summary judgment, if 

appropriate, shall be entered against a party failing to file such 

a response.”
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Opinion of the Court

13

Stichting Mayflower’s Response to UPCM’s Motion for Summary 

Judgment, May 23, 2012 at 4.10

¶42 Mayflower concedes that it failed to argue much of the 

evidence presented on appeal in its briefing in the district court. But 

it seeks to excuse that failure by noting that much of the evidence

was attached to its memorandum in opposition to defendants’ 

motion for summary judgment. Yet that is insufficient. To comply 

with the requirements of rule 56, Mayflower had to do more than

attach evidence and hope the district judge would appreciate its 

significance.11 Mayflower had the burden of “set[ting] forth specific 

facts showing that there is a genuine issue for trial.” UTAH R. CIV. P.

56(e) (2013) (emphasis added). And to do that Mayflower had to do

more than just attach evidence; it had to analyze the evidence to show

that it created a genuine issue for trial. 

¶43 The district court had no duty to look beyond Mayflower’s 

bald statements to identify supporting evidence buried somewhere 

in the record.12 And the district court cannot be faulted for not 

 

10 The block-quoted material represents the entirety of 

Mayflower’s analysis of the prescriptive easement claim in the 

district court.

11 See Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (“When 

evidence exists in the summary judgment record but the nonmovant 

fails even to refer to it in the response to the motion for summary 

judgment, that evidence is not properly before the district court.”);

Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001) 

(adopting “the majority view that the district court may limit its 

review to the documents submitted for the purposes of summary 

judgment and those parts of the record specifically referenced 

therein”); Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671–72 & n.1 

(10th Cir. 1998) (“[W]here the burden to present such specific facts 

by reference to exhibits and the existing record was not adequately 

met below, we will not reverse a district court for failing to uncover 

them itself.”).

12 See L.S. Heath & Son, Inc. v. AT & T Info. Sys., Inc., 9 F.3d 561, 

567 (7th Cir. 1993) (“[A] district court need not scour the record to 

determine whether there exists a genuine issue of fact to preclude 

summary judgment. Instead, the court can rely upon the nonmoving party to show such a dispute if one exists.”); Guarino v. 

Brookfield Twp. Trs., 980 F.2d 399, 404 (6th Cir. 1992) (“[T]here is no 

duty imposed upon the trial court to ‘search the entire record to 

(continued . . .)
STICHTING MAYFLOWER v. UNITED PARK CITY 

Opinion of the Court

14

considering analysis that was not properly presented to it under rule 

56. It would be unfair to the appellees (and to the district court) to 

overturn a decision on summary judgment on the basis of analysis 

presented for the first time on appeal. We refuse to do so. And we 

affirm on the ground that the district court properly granted 

summary judgment based on the record and arguments presented 

by the parties below.

C. Motion for Leave to Amend

¶44 Mayflower’s final claim arises under the law of appurtenant 

easement.13 This claim was advanced by Mayflower in a proposed 

second amended complaint. Mayflower sought leave to file this 

second amended complaint in a motion under rule 15(a). The district 

court denied the motion (1) under the standard set forth in rule 15(a), 

and (2) as foreclosed by Mayflower’s failure to advance the claim in 

response to its March 2012 order. We affirm.

1. Rule 15(a)

¶45 “A party may amend his pleading once as a matter of course 

at any time before a responsive pleading is served or, if the pleading 

is one to which no responsive pleading is permitted and the action 

has not been placed upon the trial calendar, he may so amend it at 

any time within 20 days after it is served.” UTAH R. CIV. P. 15(a)

(2013). “Otherwise a party may amend his pleading only by leave of 

court or by written consent of the adverse party; and leave shall be 

freely given when justice so requires.” Id.

¶46 This latter clause is applicable here. Mayflower’s amendment

required leave of court. And leave is to be “freely given when justice 

so requires.” Id. That standard gives little guidance. More than 

anything, it underscores the breadth of discretion given to district 

judges on the matter of amendment.

 

establish that it is bereft of a genuine issue of material fact.’” (citation 

omitted)); United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) 

(“Judges are not like pigs, hunting for truffles buried in briefs.”).

13 Mayflower also asserts that its “single claim for relief . . . 

contained allegations that would support relief under . . . a private 

right of access theory.” Appellants Brief at 11. But nowhere else in its 

opening or reply briefs is this “private right of access” claim 

mentioned. So we treat this silence as a waiver of Mayflower’s right 

to challenge the dismissal of that claim on appeal.
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Opinion of the Court

15

¶47 That is not to say the judge’s discretion is unbridled. Our 

cases have identified some considerations that judges should take 

into account in deciding whether “justice” requires leave to amend. 

In particular, we have identified grounds that “weigh against” a 

decision to allow an amendment. See Daniels v. Gamma W. 

Brachytherapy, LLC, 2009 UT 66, ¶ 58, 221 P.3d 256 (citation omitted). 

Those grounds include a determination that the requested 

amendment is “untimely, unjustified, [or] prejudicial.” Id.; see also 

Foman v. Davis, 371 U.S. 178, 182 (1962) (applying the parallel federal 

rule; explaining that leave should be “freely given” “[i]n the absence 

of any apparent or declared reason—such as undue delay, bad faith 

or dilatory motive on the part of the movant, repeated failure to cure 

deficiencies by amendments previously allowed, undue prejudice to 

the opposing party by virtue of allowance of the amendment, futility 

of amendment, etc.”).

¶48 Rule 15(a) yields substantial discretion to the district court. 

The district judge is to decide whether the nonmoving party has 

identified a ground or factor sufficient to defeat the presumption in 

favor of amendment. See Daniels, 2009 UT 66, ¶ 58. There is no rigid 

test. Even a single consideration or factor may be enough to justify 

denial of a motion for leave to amend. Id.

¶49 Our review under this discretionary standard is deferential. 

The question presented is not whether we would have granted leave

to amend. It is whether we find an abuse of discretion in the district 

judge’s decision to deny the motion. See Fishbaugh v. Utah Power & 

Light, 969 P.2d 403, 405 (Utah 1998).

¶50 We affirm under this standard. In denying the motion for 

leave to amend, the district court noted that the case had been 

pending for nine years when Mayflower sought to add additional 

claims—claims it could have but failed to include in its earlier 

pleadings. It also cited concerns regarding additional delay if the 

case were extended further at this late date. These are classic grounds 

for denying a motion under rule 15(a).14 And we see no reason to 

question the court’s reliance on these grounds.

 

14 See, e.g., Prince v. Bear River Mut. Ins. Co., 2002 UT 68, ¶ 49, 56 

P.3d 524 (concluding “that a trial court does not abuse its discretion 

when it denies a motion to amend a pleading that was filed after an 

extensive delay without an adequate justification, after some issues 

have been resolved, and when that pleading would add new parties 

and claims, especially when the moving party” was aware of this 

and could have added parties or claims earlier); R & R Energies v. 

(continued . . .)
STICHTING MAYFLOWER v. UNITED PARK CITY 

Opinion of the Court

16

¶51 Mayflower challenges the district court’s decision on the 

ground that its appurtenant easement claim was implicitly 

referenced in its first amended complaint. And because the elements 

of this claim overlap substantially with the elements of its existing 

claims, Mayflower insists that the amendment would not have 

required additional discovery or caused appreciable delay in the 

proceedings. 

¶52 These arguments misapprehend the nature of our appellate 

review under rule 15(a). This rule leaves a lot of discretion in the 

hands of the district judge. The judge is charged with deciding 

whether the movant had a good reason for not asserting the new 

claims at an earlier stage of the proceedings, and whether the risk of 

delay from an amendment is substantial. And the judge’s findings 

are entitled to deference on appeal. We are in no position to disturb 

them. Under the applicable standard of review, we owe deference to

the district court’s determination that Mayflower’s delay and the 

impact on the timely resolution of the case were sufficient to defeat 

the presumption in favor of amendment.15 We affirm on that basis.

¶53 The district judge earlier allowed Mayflower to amend its 

complaint five years into the litigation. He also twice declined to

dismiss the case despite two periods of inactivity of almost two years 

each. Given his involvement in and experience with the case, the 

district judge was in a better position than we are to know whether 

Mayflower had a good reason for not asserting these new claims 

 

Mother Earth Indus., Inc., 936 P.2d 1068, 1080 (Utah 1997) 

(determining that “[t]he trial court was within its powers to deny 

[petitioner’s] motion to add new parties and claims more than four 

years after the case commenced”; noting that “[t]his is especially true 

given the fact that [petitioner’s] complaint demonstrates that it knew 

that all of the parties it sought to add were involved with each other 

from the outset of the case and therefore that they could have been 

joined in a timely manner”).

15 See Hudgens v. Prosper, Inc., 2010 UT 68, ¶ 18, 243 P.3d 1275 

(“Because a district court is ‘best positioned to evaluate the motion to 

amend in the context of the scope and duration of the lawsuit,’ we 

will reverse denial of leave to amend only if the district court abused 

its discretion.” (citation omitted)); Dupler v. Yates, 351 P.2d 624, 637 

(Utah 1960) (noting that the decision whether to allow a party to 

amend its complaint to add new theories or claims “rests in the 

sound discretion of the trial court”).
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Opinion of the Court

17

earlier, and to assess the impact of an amendment on further delay in 

the resolution of a case that had already languished for many years.

2. The March 2012 Order

¶54 A district judge is charged with managing the court’s docket. 

That responsibility encompasses the task of assuring the “just, 

speedy, and inexpensive determination of every action.” UTAH R.

CIV. P. 1. The district judge’s March 2012 order was aimed at 

furthering that important goal. The order was a response to 

defendants’ motion for partial judgment on the pleadings under

Mayflower’s first amended complaint. Defendants’ motion 

construed the first amended complaint as asserting only a 

prescriptive easement claim, while acknowledging that Mayflower 

also purported to be asserting a public road claim. The district court 

denied the motion. But it also found Mayflower’s amended 

complaint to be “somewhat cryptic in nature,” such that it did “not 

put [defendants] on adequate notice regarding what is claimed.”

With this in mind, the court ordered Mayflower to “make full and 

complete disclosures of their claims and evidence” in a written 

submission on or before March 14, 2012. Order Denying Motion for 

Partial Summary Judgment on the Pleadings and Requiring Clarifying 

Disclosures Under Rules 16 and 26, March 8, 2012 at 2–3. Thus, “[f]or 

each roadway claimed,” the Mayflower plaintiffs were required to 

“provide the specific statute or case law they allege supports their 

claim to a public or private road.” Id. at 3. Third District Judge Kelly

also warned that “[f]ailure to provide such information by the date 

set forth herein shall result in Mayflower being unable to proceed 

with their claim.” Id.

¶55 This was an understandable directive given the prior twists, 

turns, and delays in this litigation. Mayflower had been given other 

opportunities to clarify its claims at earlier stages. And the case had 

been languishing for quite some time, including months and even 

years without any activity at all. So the judge’s March 2012 order 

was appropriate and even commendable. And when Mayflower 

failed to comply with it (by expressly indicating that it was asserting 

an appurtenant easement in a written submission filed by February 

10, 2014), the district court acted well within its discretion in refusing 

to allow the addition of these claims.

¶56 Mayflower asserts that it did include an appurtenant 

easement claim in its pleadings and response to the March 2012 

order. It also challenges the propriety of the March 2012 order, 

contending that the specificity and detail it required are nowhere 

found in the rules of civil procedure. 
STICHTING MAYFLOWER v. UNITED PARK CITY 

Opinion of the Court

18

¶57 We see the matter differently. We affirm the district court’s 

determination that Mayflower did not adequately identify an 

appurtenant easement claim before the deadline specified by the 

court. And we likewise uphold the district court’s prerogative to 

issue an order like this one. Perhaps Mayflower is right that the 

March 2012 order set forth pleading requirements that went beyond 

the generally applicable terms of our rules of civil procedure. But the 

order is appropriate and even laudable under the circumstances. Our

“[t]rial courts have broad discretion in managing the cases assigned 

to their courts.” Maxfield v. Herbert, 2012 UT 44, ¶ 21 n.6, 284 P.3d 647

(citation omitted). And we can hardly criticize the court for requiring 

specificity and finality in a case that had been pending for many 

years without a clear outline of the claims presented for 

adjudication. 

¶58 We accordingly affirm the denial of the motion for leave to 

amend under both rule 15(a) and under the terms of the court’s 

March 2012 order.