This opinion is subject to revision before final

publication in the Pacific Reporter

2020 UT 23

IN THE

SUPREME COURT OF THE STATE OF UTAH

SRB INVESTMENT CO., LTD and GARY TOOKE,

Appellants,

v.

DALE ORSON SPENCER, et al.,

1

Appellees.

No. 20190034

Heard December 11, 2019

Filed May 8, 2020

On Direct Appeal

Sixth District, Kanab

The Honorable Paul D. Lyman

No. 120600113

Attorneys:

V. Lowry Snow, W. Devin Snow, St. George, for appellants

Clifford V. Dunn, Michael C. Dunn, St. George, 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.

_____________________________________________________________

1 MARY ELLEN SPENCER; MARK D. SPENCER; CHARLENE SPENCER;

DALE and MARY ELLEN SPENCER, trustees of THE DALE AND MARY 

ELLEN SPENCER FAMILY TRUST; SPENCER RANCH INC.; KOB PROPERTIES,

LLC; and THE GOOD DAY RANCH, LLC are also appellees.
SRB INVESTMENT CO. v. SPENCER

Opinion of the Court

2

CHIEF JUSTICE DURRANT, opinion of the Court:

Introduction

¶1 SRB Investment Company2 sought access to its property 

through a prescriptive easement crossing land owned by the Spencer 

family. The district court determined that SRB had established this 

easement. But the court prohibited SRB from using the easement for 

any reason other than to access the SRB property for the purposes of 

ranching or farming. Because the court improperly focused on the 

purposes for which SRB’s land would be used, rather than on the 

purpose for which the relevant portion of the Spencer property 

would be used, we reverse its determination and remand for a new 

determination regarding the scope of the easement. On remand, the 

court should take a flexible approach to determining the scope of the 

prescriptive easement—an approach that permits changes in the use 

of the parties’ respective property rights so long as those changes do 

not materially increase the burden imposed on either party.

Background

¶2 For well over twenty years, Norman Carroll used a road 

crossing real property owned by the Spencer family to access his 

own property. But in 2005, Mr. Carroll sold his property to SRB 

Investment Company. Although Mr. Carroll had principally used his 

property only for ranching and farming, SRB purchased the property 

with the intent to use it as a cabin vacation spot for its members.

¶3 Some time after SRB purchased the property, the Spencers 

objected to SRB’s continued use of the portion of the road crossing 

the Spencer property. In response, SRB filed this action in order to 

regain access to the property.

¶4 After a one-day bench trial, the district court determined 

that SRB had acquired a prescriptive easement across the Spencer 

property. And, citing Utah case law, it held that the scope of the 

easement needed to be limited to its historical usage. In determining 

the easement’s historical usage, the court found that “almost all of 

the relevant evidence” came from Mr. Carroll’s deposition 

testimony.

_____________________________________________________________

2 We refer to appellants SRB Investment Company and Gary 

Tooke collectively as SRB. And we refer to appellees collectively as 

the Spencers or the Spencer family.
Cite as: 2020 UT 23

Opinion of the Court

3

¶5 Based on Mr. Carroll’s testimony, the court held the 

following: (1) the easement was limited to “vehicular travel in daily 

uses for farming and ranching purposes, and uses at random times 

for random reasons” and (2) “[m]ultiple house buildings on the SRB 

Parcel are outside the scope of the prescriptive easement’s 

historic[al] usage, but a camp or other [temporary] building or 

vehicle that is ancillary to farming and ranching used on the SRB 

Property would not be outside the scope.” SRB appealed this 

determination. We have jurisdiction pursuant to Utah Code section 

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

Standard of Review

¶6 In determining whether a prescriptive easement exists, a 

district court must make a number of factual findings regarding the 

duration and nature of the easement’s use. The court must also 

correctly identify the legal standard governing the creation of a 

prescriptive easement. And it must correctly apply that legal 

standard to its factual findings. In reviewing these determinations on 

appeal, we review the district court’s conclusions regarding the legal 

standard for correctness.

3 And we review the court’s factual 

findings, including how the court applied those findings to the 

correct legal standard, for an abuse of discretion.4

Analysis

¶7 SRB argues the district court erred in defining the scope of 

the easement based on how SRB used its own property during the 

prescriptive period. Instead, SRB argues that the court should have 

defined the scope of the easement based on how SRB used the 

Spencer’s property during that period. We agree and remand this 

case to the district court for a new determination, consistent with the 

legal principles outlined in this opinion, regarding the easement’s 

scope.

_____________________________________________________________

3 See Schroeder v. Utah Atty. Gen.’s Office, 2015 UT 77, ¶ 17, 358 

P.3d 1075.

4 Judd v. Bowen, 2018 UT 47, ¶ 8, 428 P.3d 1032 (explaining that 

“such a determination is the type of highly fact-dependent question, 

with numerous potential fact patterns, which accords the trial judge 

a broad measure of discretion when applying the correct legal 

standard to the given set of facts”(citations omitted) (internal 

quotation marks omitted)).
SRB INVESTMENT CO. v. SPENCER

Opinion of the Court

4

¶8 We have long held that “the extent of a prescriptive 

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

prescriptive period.”5 The district court cited this rule in limiting the 

scope of the easement across the Spencer property. But, in so doing, 

the court limited the use of the easement to “vehicular travel in daily 

uses for farming and ranching purposes, and uses at random times 

for random reasons.” It also appeared to limit SRB’s use of SRB’s 

own property by stating that “[m]ultiple house buildings on the SRB 

Parcel are outside the scope of the prescriptive easement’s 

historic[al] usage, but a camp or other [temporary] building or 

vehicle that is ancillary to farming and ranching uses on the SRB 

Property would not be outside the scope.” By limiting the scope of 

the easement in this way, the district court erred.

¶9 The district court erred because it erroneously equated the 

“purpose” for which SRB’s property—the dominant estate—was 

used with the “extent” of the easement’s historical use over the 

Spencer property—the servient estate. This is inconsistent with basic 

principles underlying the prescriptive easement doctrine.

¶10 When the principles underlying the prescriptive easement 

doctrine are considered, together with our case law, an important 

distinction between a prescriptive easement’s “type” (or “purpose”) 

and a prescriptive easement’s “scope” emerges. Under this 

distinction, a prescriptive easement’s type should be categorized 

broadly based on the general purpose for which the easement over 

the servient estate has historically been used. And a prescriptive 

easement’s scope should be defined with particularity based on the 

nature, or extent, of that historical use. We discuss this distinction in 

greater detail before applying it to the facts of this case.

I. There is an Important Distinction Between a Prescriptive 

Easement’s Type and Its Scope

¶11 “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.”6 Although our 

case law has never explicitly distinguished between a prescriptive

easement’s type—as defined by its historical purpose—and its 

_____________________________________________________________

5 Valcarce v. Fitzgerald, 961 P.2d 305, 312 (Utah 1998).

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

1946) (emphasis added) (internal quotation marks omitted).
Cite as: 2020 UT 23

Opinion of the Court

5

scope—as defined by the nature of its historical use—such a 

distinction is implicit in our previous prescriptive easement cases 

and is consistent with well-established prescriptive easement 

principles.

¶12 Our case law clearly establishes that there are different types 

of prescriptive easements.7 The most common type of prescriptive 

easement is an access easement, or, in other words, an easement for 

ingress or egress across the servient estate.8 But we have also 

recognized other types of easements, such as easements for the 

purposes of recreation,9 logging,10 and irrigation.11 And we have 

explained that 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.”12 For this reason, the 

“first step in determining whether the holder of an easement is 

_____________________________________________________________

7 See, e.g., Richards v. Pines Ranch, Inc., 559 P.2d 948, 949 (Utah 

1977) (distinguishing between an easement established for access 

and an easement for recreational purposes).

8 See, e.g., Orton v. Carter, 970 P.2d 1254 (Utah 1998) (concluding 

that each party owned an easement over a common lane for access 

purposes); Crane v. Crane, 683 P.2d 1062 (Utah 1984) (affirming the 

award of an easement to a grazing association to drive cattle over a 

limited area of a property twice a year); Richards, 559 P.2d at 948 

(awarding the plaintiffs a prescriptive easement to cross over “a 

rough road across defendant’s land”); Richins v. Struhs, 412 P.2d 314 

(Utah 1966) (concluding that claimants had established a prescriptive 

easement to use a common driveway and bridge approaching the 

adjoining properties for access purposes); Zollinger v. Frank, 175 P.2d 

714, 715 (Utah 1946) (affirming the claimant’s right to use a strip of 

his neighbor’s land for “the purpose of traveling” to his land from a 

public road); Judd v. Bowen, 2017 UT App 56, ¶ 43, 397 P.3d 686 

(explaining that “most prescriptive easements consist of one version 

or another of a right merely to pass over another’s land, such as a 

right-of-way, for purposes related to access or ingress and egress”).

9 Richards, 559 P.2d at 949.

10 Id.

11 Big Cottonwood Tanner Ditch Co., 174 P.2d at 158.

12 Nielson v. Sandberg, 141 P.2d 696, 701 (Utah 1943) (internal 

quotation marks omitted).
SRB INVESTMENT CO. v. SPENCER

Opinion of the Court

6

entitled to make a particular use challenged by the owner of the 

servient estate is to determine whether the use falls within the 

purposes for which the [prescriptive easement] was created.”13

¶13 But the purpose for which a prescriptive easement was 

created is not the only limiting factor in defining the easement. We 

have also explained that the extent of a prescriptive easement is 

measured and limited by the nature of the use made during the 

prescriptive period.

14 Utah courts often refer to this second form of 

limitation as the “scope” of the easement.15

¶14 Thus our case law establishes that a prescriptive easement 

should be defined generally by type—based on the purpose for 

which it was acquired—as well as specifically by scope—based on 

the nature and extent of the easement’s historical use. But even

though an easement’s type and scope both work to define the extent 

of the rights enjoyed through a prescriptive easement, the limitations 

imposed by the type and scope should be analyzed separately.

II. The Type of a Prescriptive Easement Should be Defined Broadly 

Based on the Purpose for Which the Servient Estate was Used

¶15 Because a prescriptive easement acquired “for one purpose

. . . cannot be turned into a[n] [easement] for another purpose if the 

latter adds materially to the burden of the servient estate,”16 the 

“outcome in any particular case” may hinge on “the level of 

_____________________________________________________________

13 RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 4.10 cmt. d (AM.

LAW INST. 2000) (emphasis added).

14 See Crane, 683 P.2d at 1068 (approving the district court’s 

decision in which it limited “the nature and extent of the use by 

which it was acquired”); McBride v. McBride, 581 P.2d 996, 997 (Utah 

1978).

15 See, e.g., Judd, 2017 UT App 56, ¶ 43 (“[A] review of cases in 

which our courts have awarded or affirmed awards of prescriptive 

easements suggests that the balance has been struck by limiting the 

scope of a prescriptive easement to the sort of transitory uses which 

place relatively minimal burdens on the landowner’s own use of the 

property.”).

16 Nielson v. Sandberg, 141 P.2d 696, 701 (Utah 1943) (internal 

quotation marks omitted).
Cite as: 2020 UT 23

Opinion of the Court

7

generality with which the purpose is defined.”17 So, for example, the 

purpose of the easement in this case could be broadly defined as an 

easement to access the dominant estate. Or, as the district court’s 

order illustrates, it could be narrowly defined as an easement to 

access the dominant estate for farming and ranching activities. But 

our case law suggests that the type, or purpose, of a prescriptive 

easement should be defined broadly.

¶16 For example, in describing the purpose of an access 

easement, we typically characterize the purpose as being to access 

another property without further identifying the purpose for which 

that property was being accessed.18 Likewise, we have defined 

easements used for “recreational purposes” without specifically 

identifying the types of recreation.19 And we have discussed an 

easement for “the purpose of discharging” water “across the 

premises of the plaintiffs” without discussing the purpose for which 

the water would be used.20 So our case law suggests that when 

describing the easement’s purpose we need only do so in broad 

terms.

¶17 Accordingly, courts should construe the general purpose of 

a prescriptive easement broadly. And once this general purpose is 

determined, any use of the servient estate that is for another purpose 

_____________________________________________________________

17 RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 4.10 cmt. d (AM.

LAW INST. 2000) (emphasis added).

18 See, e.g., Orton v. Carter, 970 P.2d 1254 (Utah 1998) (concluding 

that each party owned an easement over a common lane for access 

purposes); Richins v. Struhs, 412 P.2d 314 (Utah 1966) (concluding 

that claimants had established a prescriptive easement to use a 

common driveway and bridge approaching the adjoining properties 

for access purposes); Zollinger v. Frank, 175 P.2d 714, 715 (Utah 1946) 

(affirming the claimant’s right to use a strip of his neighbor’s land for 

“the purpose of traveling” to his land from a public road); Judd v.

Bowen, 2017 UT App 56, ¶ 43, 397 P.3d 686 (explaining that “most 

prescriptive easements consist of one version or another of a right 

merely to pass over another’s land, such as a right-of-way, for 

purposes related to access or ingress and egress”).

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

20 Hubble v. Cache Cty. Drainage Dist. No. 3, 259 P.2d 893, 895 (Utah 

1953).
SRB INVESTMENT CO. v. SPENCER

Opinion of the Court

8

is impermissible unless the burden imposed on the servient estate by 

the change is immaterial.

¶18 In applying this rule to this case, the factual findings of the 

district court suggest that the purpose of the prescriptive easement at 

issue is to provide access to SRB’s property. The court held that “the 

essentially unrefuted testimony of Norman H. Carroll clearly and 

convincingly establish[ed] that a prescriptive easement was created” 

to access “the SRB Parcel.” Accordingly, the general purpose of the 

easement should be defined broadly as being for access to SRB’s 

property, and any use of the servient estate, other than for access to 

the SRB property, should be deemed permissible only if it does not 

materially add to the burden imposed by the access easement.

III. The Extent, or Scope of Permissible Use, of a Prescriptive 

Easement Should be Limited by the Nature of its Historical Use

¶19 In contrast to the broad characterization of a prescriptive 

easement’s purpose, our case law suggests that we must define the 

specific nature, or scope, of the easement’s historical use with 

particularity. This is so because “the extent of a prescriptive [right] is 

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

period.”21 And that right “cannot be enlarged to place a greater 

burden or servitude” on the servient estate.22 In other words, the 

extent of a prescriptive easement is measured by the burden 

historically imposed on the servient estate during the prescriptive 

period. Because the ultimate aim in determining the extent (or scope) 

of a prescriptive easement is to limit the burden on the servient 

_____________________________________________________________

21 Valcarce v. Fitzgerald, 961 P.2d 305, 312 (Utah 1998); see also

Nyman v. Anchor Dev., L.L.C., 2003 UT 27, ¶ 18, 73 P.3d 357 (“Here, 

the term ‘use’ implies an inherent distinction in the property rights 

conferred by an easement, on the one hand, and outright ownership, 

on the other. ‘A prescriptive easement does not result in ownership, 

but allows only use of property belonging to another for a limited 

purpose.’” (citation omitted)).

22 Valcarce, 961 P.2d at 312 (internal quotation marks omitted); see 

also Nielson v. Sandberg, 141 P.2d 696, 701 (Utah 1943) (“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)).
Cite as: 2020 UT 23

Opinion of the Court

9

estate to what had been imposed historically, courts should consider 

only those factors that are helpful in determining the nature of the 

historical burden imposed on the servient estate.23

A. The scope of a prescriptive easement must be limited by the burdens 

imposed by its historical use

¶20 There are a number of factors that courts consistently 

consider in determining the scope of a prescriptive easement. As 

discussed above, the purpose of considering these factors is to 

determine the burden that has historically been placed on the 

servient estate. With this purpose in mind, courts almost always 

consider the physical dimensions of the historical use of the servient 

estate. They also consider the frequency and intensity of the use, as 

well as the effect of the use on the aesthetic and economic value of 

the property.24

¶21 For example, in Crane v. Crane,

25 we considered the 

appropriate scope of a prescriptive easement for access. The 

prescriptive easement in question had been used historically to 

transport approximately 150 cattle each spring, and 400 cattle each 

fall, across the property.26 Based on this historical use, the district 

court held that the easement could be used “one day in the spring of

each year and up to ten days in the fall of each year.”27 And the court 

limited the use to “up to 350 head of cattle during the 10 days in the 

fall.”28 In reviewing this decision, we held that the district court 

“appropriately limit[ed] the easement in gross to the nature and 

extent of the use by which it was acquired.”29 But we noted that even 

though the district court limited the number of cattle in the fall, it 

_____________________________________________________________

23 Hubble v. Cache Cty. Drainage Dist. No. 3, 259 P.2d 893, 895 (Utah 

1953) (explaining that all of the alleged errors in the case focused on 

“substantially the same point”: “the burden on the servient estate”).

24 See RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 4.10 cmt. f

(AM. LAW INST. 2000) (describing the nature of use as the “manner, 

frequency, and intensity of the use”).

25 683 P.2d 1062 (Utah 1984).

26 Id. at 1064.

27 Id. at 1064 n.1.

28 Id.

29 Id. at 1068.
SRB INVESTMENT CO. v. SPENCER

Opinion of the Court

10

failed to do so in the spring.30 Accordingly, we modified the district 

court’s order to include this additional limitation.31 In this way, we 

ensured that the burden—stated in terms of the frequency and 

intensity of the use—imposed on the servient estate by the judicially 

recognized prescriptive easement did not exceed the burden that had 

historically been imposed.32

¶22 Even though courts will almost always consider the physical 

dimensions of the land used, as well as the frequency and intensity 

of that use, the “ultimate criterion” in determining the scope of a 

prescriptive easement is that of avoiding increased burdens on the 

servient estate.

33 So courts should consider any and all factors that 

may contribute to that burden.

¶23 For instance, in determining the scope of access easements, 

courts often consider the mode of transportation that has historically 

been used for access. But, importantly, this factor is considered only 

_____________________________________________________________

30 Id.

31 Id.

32 The focus on the burdens imposed by a prescriptive use is 

consistent with equitable principles. This is because, by permitting a 

prescriptive use to continue uninterrupted for twenty years, the 

landowner has demonstrated that the burden imposed by the 

prescriptive use is not too onerous to be born. But the same cannot 

be said about any change in use that materially increases the burden 

imposed on the servient estate. See Harvey v. Haights Bench Irr. Co., 

318 P.2d 343, 349 (Utah 1957) (“Since the right has its inception in the 

use during that time, its extent and limitations, its burdens and 

benefits are determined by the nature of that use and the 

understandings of the parties thereto. Thus any use which would 

have probably been interrupted by the owner of the servient estate 

had the owner of the dominant estate attempted such use prior to 

the expiration of the prescriptive period[] is a use which places a 

greater burden on the servient estate and therefore is beyond the 

prescriptive right acquired by the dominant estate.” (emphasis 

omitted) (citation omitted)).

33 28A C.J.S. Easements § 194 (“The ultimate criterion determining 

the scope of a prescriptive easement is that of avoiding increased 

burdens on the servient tenement while allowing some flexibility in 

the use of the dominant tenement.”).
Cite as: 2020 UT 23

Opinion of the Court

11

where the mode of transportation affects the burden placed on the 

servient estate. For example, in Gillmor v. Carter, the district court 

reserved for trial the question of whether the defendant “had 

obtained a prescriptive right to personally travel over [an easement] 

by jeep, passenger car or panel truck,” but it enjoined him from 

using a road “for the purpose of hauling salt or other minerals from 

the Great Salt Lake.”34 The defendant appealed this determination. 

On appeal, we explained that although the defendant had testified 

that he had used the road for over twenty years, his use of the road 

“did not include use of trucks for hauling heavy tonnage.”35 Because 

“hauling salt in heavy tonnages” would have imposed an additional 

“burden” on the servient estate than what was imposed by his use of 

smaller vehicles, we affirmed the district court’s decision.36 Thus our 

decision in Gillmor confirms that courts should consider any factors 

that may contribute to the overall burden imposed on the servient 

estate by the easement.37

B. The subjective purpose in using an easement is relevant only to the 

extent it sheds light on the nature of the historical burden imposed on the 

servient estate

¶24 Although, in determining the scope of a prescriptive 

easement, courts may consider a wide variety of factors, the 

subjective purpose for which a prescriptive easement is used should 

be considered only to the extent it is helpful in determining the 

nature of the burden historically placed on the servient estate. This is 

so because the purpose for which an easement holder uses the 

servient estate does not, in and of itself, burden the servient estate.

¶25 For example, in Jesurum v. WBTSCC Limited Partnership, the 

New Hampshire Supreme Court determined the scope of an 

easement providing access to a public beach across a private golf 

_____________________________________________________________

34 391 P.2d 426, 426 (Utah 1964).

35 Id. at 427.

36 Id. at 428.

37 See also Williams v. Slate, 415 S.W.2d 616, 618 (Ky. 1966) (“The 

easement acquired by prescription was for normal rural 

transportation purposes. Converting the passway to a haul-road for 

heavy coal trucks was an entirely new and heavily burdensome use 

unrelated to that which had theretofore existed.”).
SRB INVESTMENT CO. v. SPENCER

Opinion of the Court

12

course.38 The owner of the golf course argued that the easement 

“should be limited in scope to digging for worms and searching for 

shellfish because the first recorded use of [the easement across the 

golf course] was limited to those purposes.”39 But the court 

explained that this “argument confuse[d] the public use made of [the 

golf course] with the public use made of [the beach].”40 Because the 

subjective purpose the prescriptive users may have had in using the 

easement was “irrelevant” to the burden imposed by the easement, 

the court correctly held that that purpose was “not germane to the 

determination of the scope of the easement.”41 So the decision in 

Jesurum illustrates that in many cases, the purpose for which a 

prescriptive easement is used will not materially contribute to the 

burden imposed by that use.

¶26 But there may be instances where the purpose for which an 

easement is used provides the best evidence of the burden imposed 

on the servient estate. For example, in Bolton v. Murphy we 

considered the “nature or character of the use” of an access easement 

in a rural farming community.42 In that case, a large number of 

plaintiffs claimed a prescriptive easement across the land of a 

neighbor to access a public highway.43 The group of plaintiffs had 

used the easement for roughly fifty years to access their respective 

farms and homes.44 Because the easement had been used so widely 

and for so long, the court was forced to articulate the scope of the 

easement in broad terms. It held that the easement could be used 

“for the purposes that roads are ordinarily used for by farmers in the 

vicinity.”45 In other words, in the absence of evidence of more 

specific limiting factors, the court in Bolton properly considered the 

purposes for which roads in the area were typically used as the best 

evidence of the burden imposed on the servient estate.

_____________________________________________________________

38 151 A.3d 949, 958 (N.H. 2016).

39 Id.

40 Id.

41 Id.

42 127 P. 335, 339 (Utah 1912).

43 Id. at 336–37.

44 Id.

45 Id. at 339.
Cite as: 2020 UT 23

Opinion of the Court

13

¶27 Accordingly, in determining what the historical burden has 

been on a servient estate, courts may consider the subjective purpose 

for which an easement is used, but only to the extent it provides 

relevant evidence of the scope of that burden.

C. The use of the dominant estate is likewise relevant only to the extent it 

sheds light on the nature of the historical burden imposed on the servient 

estate

¶28 Similarly, an easement holder’s use of the dominant estate 

may be considered in determining the scope of an easement, but 

only to the extent it provides information regarding the nature of the 

burden on the servient estate. Our decision in Robins v. Roberts

illustrates this point.46

¶29 In Robins, the owner of the dominant estate replaced an 

earthen dam on his own property with a larger cement dam.47

Although the owner of the dominant estate had previously acquired 

a prescriptive easement to flood a portion of the servient estate by 

using his dam, the owner of the servient estate attempted to restrain 

the owner of the dominant estate “from maintaining” the new 

cement dam.48 Because the new cement dam was “five or six inches 

higher than the old one,” the owner of the servient estate argued that 

its construction had enlarged the flooding easement on the servient 

estate.49 But we disagreed. Although we acknowledged that the new 

dam was “five or six inches higher than the earthen dam it 

replaced,” we explained that “it matters not that the dam itself is 

larger or occupies more ground” because the dam was not on the 

servient estate.50 The only thing that was relevant, we explained, was 

whether the water flooding the servient estate exceeded the extent of 

the flooding “that was done by use of the old dam.”51 Because the 

evidence indicated that “[s]ubstantially the same amount of land 

[was] irrigated as was irrigated theretofore,” we refused to order the 

_____________________________________________________________

46 15 P.2d 340, 340 (Utah 1932).

47 Id.

48 Id.

49 Id. at 342.

50 Id.

51 Id.
SRB INVESTMENT CO. v. SPENCER

Opinion of the Court

14

owner of the dominant estate to remove his new dam.52 So our 

decision in Robins illustrates that the nature of the usage of the 

dominant estate is irrelevant except to the extent it provides 

information that would be helpful in determining the burden placed 

on the servient estate.

¶30 The reasoning in Robins is consistent with the approach 

followed in other jurisdictions. For example, in Gaither v. Gaither, a 

California court of appeals held that a prescriptive easement that had 

formerly been used to access the dominant estate, which had 

historically been used “for farming purposes,” could also be used to 

access recently constructed rental units on the property.53 In so 

holding, the court explained that the change did not increase the 

burden on the servient estate because the change did not affect “the 

physical objects [(vehicles)] passing over the driveway.54 In other 

words, the court found that the purpose for which the dominant 

estate was being used was irrelevant to a determination of the 

burden that had historically been imposed on the servient estate. As 

the decision in Gaither illustrates, our case law is consistent with the 

approach generally followed in other jurisdictions.

¶31 Accordingly, the purposes for which the dominant estate is 

used is relevant to a determination of the permitted uses of a 

prescriptive easement only to the extent it provides information 

regarding the nature of the burden imposed on the servient estate. In 

other words, where a change in the purpose for which a dominant 

estate is used does not increase the burden imposed on the servient 

estate, that change is irrelevant in determining the scope of a 

prescriptive easement.55

_____________________________________________________________

52 Id.

53 332 P.2d 436, 438 (Cal. Dist. Ct. App. 1958).

54 Id.

55 See RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 4.10 cmt. f 

(AM. LAW INST. 2000) (“If the change in use of the dominant estate, or 

enterprise benefited by the easement, brings no change in the 

physical use of the easement, the dominant owner may continue to 

use the easement.”).
Cite as: 2020 UT 23

Opinion of the Court

15

D. Utah follows the majority rule that the nature of a use can be altered 

reasonably

¶32 Although the ultimate criterion in determining the scope of 

a prescriptive easement is to limit the burden imposed on the 

servient estate to what has been imposed historically, Utah allows 

reasonable changes to be made by both the easement holder and the 

owner of the servient estate so long as it does not materially increase 

the burden imposed on either party.

¶33 We have held that a “right of way for one purpose gained 

by user cannot be turned into a right of way for another purpose if 

the latter adds materially to the burden of the servient estate.”56 We 

have also held that “an alteration in the easement requires the 

consent of the other party unless it can be considered to be of such an 

immaterial character as would not interfere with the reasonable 

enjoyment of the easement.”57 And we have held that the “right of 

the easement owner and the right of the land-owner are not absolute, 

irrelative, and uncontrolled, but are so limited, each by the other, 

that there may be a due and reasonable enjoyment of both.”58 As 

these holdings indicate, in considering changes to the use of an 

easement or the servient estate, we apply a flexible rule that seeks to 

accommodate reasonable changes in use.

¶34 This rule was applied in our 1976 decision in North Union 

Canal Co. v. Newell.

59 In that case a canal company sought to enjoin 

the owners of the servient estate from maintaining a fence around 

their property because it placed a burden on the canal company’s 

easement right to enter the property for the purpose of performing 

maintenance on its canal.60 In considering this argument, we 

observed that whenever “there is ownership of property subject to 

an easement there is a dichotomy of interests, both of which must be 

_____________________________________________________________

56 Nielson, 141 P.2d at 701 (citation omitted) (internal quotation 

marks omitted).

57 McBride v. McBride, 581 P.2d 996, 998 (Utah 1978) (emphasis 

added) (footnotes omitted).

58 Big Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148, 158

(Utah 1946).

59 550 P.2d 178 (Utah 1976).

60 Id. at 179.
SRB INVESTMENT CO. v. SPENCER

Opinion of the Court

16

respected and kept in balance.”61 We then noted that the fence 

constructed on the servient estate “would interfere with the [canal 

company’s] use and enjoyment of its easement.”62 “From this,” we 

explained, “the logical conclusion would seem to be that the fence 

should be removed.”63 But we declined to order the fence’s removal.

¶35 In declining to order “such a stringent measure,” we 

explained that “the object to be desired [in easement cases] is to find 

some accommodation of those conflicting interests, to the maximum 

advantage and to the minimum disadvantage[] of both parties.”64 So 

with this object in mind, we declined to order the removal of the 

fence, but we ordered the owners of the servient estate to maintain 

gates “at reasonable intervals in the fence along the canal bank to 

allow the [canal company] access thereto as its needs may arise.”65

Accordingly, our decision in North Union Canal Co. confirms that, in 

considering changes to the use of an easement or the servient estate, 

we apply a flexible rule that seeks to accommodate reasonable 

changes in use. And our case law suggests that a reasonable change 

in use is any change that does not materially increase the burden on 

the servient estate or materially restrict the use of the easement.

¶36 This flexible approach is consistent with the approach 

followed in a majority of jurisdictions.66 For example, the Alaska 

Supreme Court has held that “the use made of a prescriptive 

_____________________________________________________________

61 Id.

62 Id.

63 Id.

64 Id. at 179–80.

65 Id. at 180.

66 See RESTATEMENT (FIRST) OF PROPERTY § 477 cmt. b (AM. LAW 

INST. 1944) (“Yet, no use can ever be exactly duplicated. If any 

practically useful easement is ever to arise by prescription, the use 

permitted under it must vary in some degree from the use by which 

it was created. Hence, the use under which a prescriptive interest 

arises determines the general outlines rather than the minute details 

of the interest.”); RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 4.10 

(AM. LAW INST. 2000) (“The manner, frequency, and intensity of the 

use may change over time to take advantage of developments in 

technology and to accommodate normal development of the 

dominant estate or enterprise benefited by the servitude.”).
Cite as: 2020 UT 23

Opinion of the Court

17

easement may evolve beyond the original prescriptive uses, [but] 

new uses cannot substantially increase the burden on the servient 

estate.”67 And a Connecticut appellate court has explained that one 

“who has an easement by prescription has the right to do such acts 

that are reasonable and necessary to effectuate that party’s 

enjoyment of the easement unless it unreasonably increases the 

burden on the servient tenement.”68

¶37 According to the Maine Supreme Judicial Court, this flexible 

approach is essential to preserve the usefulness of a prescriptive 

right over time.69 And we endorsed a similar rationale in our Big 

Cottonwood Tanner Ditch Co. case.70 In that case we cited the rule that 

“the extent of an easement acquired by prescription is measured and 

limited by the use made during the prescriptive period.”71 But we 

cautioned against applying this rule “with absolute strictness” 

because doing so would render the prescriptive right “of no utility 

whatsoever.”72 Accordingly, our decision in Big Cottonwood Tanner 

Ditch Co. suggests that prescriptive rights, where established, should 

be construed to preserve their usefulness over time.

¶38 In sum, when asked to determine the scope of a prescriptive 

easement, or whether a particular use is permitted under that 

easement, courts should consider any and all factors that are helpful 

in determining the extent of the historical burden on the servient 

_____________________________________________________________

67 Price v. Eastham, 75 P.3d 1051, 1058 (Alaska 2003).

68 Hoffman Fuel Co. of Danbury v. Elliott, 789 A.2d 1149, 1158 

(Conn. App. Ct. 2002) (citation omitted).

69 Gutcheon v. Becton, 585 A.2d 818, 822 (Me. 1991) (“In order to 

remain useful to the dominant estate it serves, a prescriptive right of 

way must encompass some flexibility of use, and adapt to natural 

and foreseeable developments in the use of the surrounding land. 

When presented with an alleged overburdening of a prescriptive 

easement, the factfinder must balance the prior use of the right of 

way established during the prescriptive period against any later 

changes in the method of use that unreasonably or unforeseeably 

interfere with the enjoyment of the servient estate by its current 

owner.”).

70 174 P.2d at 157.

71 Id.

72 Id.
SRB INVESTMENT CO. v. SPENCER

Opinion of the Court

18

estate. Factors that courts should consider in almost every case are 

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. Additionally, 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. Finally, in determining the scope of a prescriptive 

right, courts should take a flexible approach that permits changes of 

use so long as those changes do not materially burden the servient 

estate or materially interfere with the prescriptive right.

IV. We Reverse the Judgment of the District Court and Remand for a 

New Determination Regarding the Scope of the Prescriptive 

Easement in this Case

¶39 With the correct approach to prescriptive easements in 

mind, we now consider the district court’s determination in this case. 

In determining the easement’s historical usage, the court found that 

“almost all of the relevant evidence” came from Mr. Carroll’s 

deposition testimony. Based on this testimony, the court found that 

Mr. Carroll’s uses had “almost all been farming or ranching related 

uses, along with trips to and from the SRB Parcel at random times 

and for random reasons.” And after defining the purpose of the 

easement in this way, the court held the following: (1) the easement 

was limited to “vehicular travel in daily uses for farming and 

ranching purposes, and uses at random times for random reasons” 

and (2) “[m]ultiple house buildings on the SRB Parcel are outside the 

scope of the prescriptive easement’s historic[al] usage, but a camp or 

other [temporary] building or vehicle that is ancillary to farming and 

ranching uses on the SRB Property would not be outside the scope.” 

The court erred in making both of these determinations.

A. The district court incorrectly limited the use of the access easement to 

only those people who would use it with the subjective purpose to farm or 

ranch on the SRB property

¶40 First, the court erred by limiting the use of the access 

easement to only those people who would use it with the subjective 

purpose to farm or ranch on the SRB property. As we discussed 

above, the subjective purpose for which an easement is used is 

relevant only to the extent it provides evidence regarding the nature 

of the burden imposed on the servient estate. Thus the court erred in 

focusing on that fact to the exclusion of all other factors regarding 

the historical burden on the servient estate.
Cite as: 2020 UT 23

Opinion of the Court

19

¶41 To be clear, we are not suggesting that, on remand, the court 

cannot consider the prescriptive users’ subjective purpose in using 

the easement. The fact that the easement was historically used for 

ranching and farming could be helpful in establishing certain aspects 

of the burden imposed. For example, evidence related to farming or 

ranching activities on the SRB property could suggest that, 

historically, the physical dimensions of the easement were wide 

enough to allow large trucks, loaded with tractors or crops, to pass 

through. And, in the absence of better evidence, the fact that the SRB 

property was used for ranching or farming could also suggest that 

the nature of the use of the easement was seasonal and that the 

frequency of the use was less than that of a road leading to a 

residential or commercial area.73

¶42 But the fact that the easement was used to access the SRB 

property by people having the subjective purpose to ranch or farm 

does not, in and of itself, burden the Spencer property. And for this 

reason, the district court erred in limiting SRB’s future use of the 

easement to those who use it intending to farm or ranch.

B. The district court incorrectly limited SRB’s use of the dominant estate

¶43 Second, the district court erred in limiting SRB’s use of 

SRB’s own property. Although the limited scope of a prescriptive 

easement could, in practical effect, limit the uses to which SRB’s 

property could be used, those limitations are not legally imposed by 

nature of SRB’s prescriptive rights in the Spencer property. As we 

held in our decision in Robins v. Roberts, “it matters not” to the 

Spencers what SRB does on SRB’s property because the Spencers 

have no legal right burdening that property.74 And even though 

certain uses of the SRB property could lead to incidental increases on 

the burden imposed by the easement on the Spencer property, there 

is no indication that such an increase has occurred or would occur 

were SRB to build a few family cabins on the SRB property.

_____________________________________________________________

73 We note that, consistent with Utah’s flexible approach to 

easements—which seeks to resolve disputes to the maximum 

advantage and to the minimum disadvantage of both parties—a 

party’s use of an easement that has historically been used only 

seasonally should be limited to that seasonal use only where more 

frequent use would materially increase the burden on the servient 

estate.

74 15 P.2d 340, 342 (Utah 1932).
SRB INVESTMENT CO. v. SPENCER

Opinion of the Court

20

¶44 The unrefuted deposition testimony of Norman Carroll 

informs us that the easement was used “sometimes daily in the 

spring and the harvest time.” At another point, he testified that he 

traveled to his property “all the time”; that he used the easement 

“without any restrictions”; and that there was never a time that he 

was not permitted to use the property. And at the end of his 

testimony, he again testified that he used the road “unrestricted for 

all th[ose] years,” that he “never had to ask for permission,” and that 

he “used it for the operation of [the SRB] property.”

¶45 In addition to testimony regarding the frequency of the 

easement’s use, there is ample testimony regarding the intensity of 

that use. Mr. Carroll testified that he regularly drove “big trucks in” 

across the property. He also testified that he used the road to 

transport “all the farm equipment,” “harvesting equipment,” and 

“the camps.” And that it was used to haul water to the livestock and 

to haul off crops, as well as to transport horses in horse trailers.

¶46 So the record contains ample evidence regarding the nature 

of the burden imposed on the Spencer property by the historical use 

of the easement. Because this evidence speaks more directly to the 

burden imposed on the Spencer property than does evidence 

regarding the historical use of SRB’s property, the evidentiary value 

regarding the use of SRB’s property appears to be minimal. And, 

even more importantly, the Spencers have failed to point to any 

evidence to suggest that a conversion of the SRB property from a 

farming and ranching property to a cabin property, with a few 

cabins, would increase the burden on the servient estate. So the 

district court erred in imposing restrictions on how SRB may use 

SRB’s property.

¶47 In sum, the district court erred by incorrectly limiting the 

use of the easement to only those people who would use it for the 

purposes of ranching and farming and by limiting SRB’s use of its 

own property.

¶48 Because the district court erred in describing the scope of 

the prescriptive easement in this case, we remand for a new 

determination. On remand, the district court should be careful to 

consider only those factors that provide information regarding the 

burden that has been imposed historically by the easement on the 

Spencer property. Because the physical dimensions of the easement 

do not appear to be disputed, this determination should focus on the 

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

aesthetic and economic value of the property, as well as any other 

factor relevant in determining the burden the use of the easement 
Cite as: 2020 UT 23

Opinion of the Court

21

has historically imposed on the servient estate. Additionally, in 

making this determination, the district court should employ a 

flexible approach that aims “to find some accommodation of [the 

parties’] conflicting interests, to the maximum advantage and to the 

minimum disadvantage[] of both parties,”75 so that the prescriptive 

right retains its “utility”76 for SRB without materially adding to the 

burden imposed on the Spencers.77

Conclusion

¶49 When asked to determine the scope of a prescriptive 

easement, or whether a particular use is permitted under that 

easement, the ultimate aim of courts should be to preserve the utility 

of the prescriptive right without materially adding to the burden 

imposed on the servient estate. For this reason, the focus in a court’s 

analysis should be on the burden historically imposed on the 

servient estate by the easement’s use. In conducting this analysis, 

courts should almost always 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. 

Additionally, courts may 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. Finally, in determining 

the scope of a prescriptive right, courts should take a flexible 

approach that permits changes of use so long as those changes do 

not materially burden the servient estate or materially interfere with 

the prescriptive right. Because the district court’s determination of 

the scope of the prescriptive easement in this case was inconsistent 

with these principles, we remand for a new determination.

_____________________________________________________________

75 North Union Canal Co. v. Newell, 550 P.2d 178, 180 (Utah 1976).

76 Big Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148, 157

(Utah 1946).

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