                 This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                 2018 UT 47


                                    IN THE

       SUPREME COURT OF THE STATE OF UTAH

                          ROBERT L. JUDD III,
                       and CHARLES L. ALLEN,
                  Petitioners and Cross Respondents,
                                       v.
                          DAVID BOWEN,
                   Respondent and Cross Petitioner.


                              No. 20170431
                          Filed August 29, 2018

               On Certiorari to the Court of Appeals

                        Third District, Salt Lake
                        The Honorable Su Chon
                            No. 110917049

                                 Attorneys:
 Bruce J. Nelson, Joseph C. Rust, Jeffery S. Williams, Salt Lake City,
                           for petitioners
  Michael D. Zimmerman, Clemens A. Landau, Salt Lake City, for
                         respondent

CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
 ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PETERSEN
                    and JUDGE DAVIS joined.
 Having recused himself, JUSTICE PEARCE did not participate herein.
            DISTRICT COURT JUDGE LYNN W. DAVIS sat.

   CHIEF JUSTICE DURRANT, opinion of the Court:

                               Introduction
   ¶1 After decades of amicable use of a circular driveway
touching adjacent cabins, two families now dispute whether an
easement by prescription exists. The Judd family maintains that it
has a prescriptive easement to the entire driveway for access and
                            JUDD v. BOWEN
                         Opinion of the Court

parking purposes. The Bowen family argues that any use of the
driveway by the Judds came through the Bowens’ permission and so
no prescriptive right exists. After a four-day bench trial, the trial
court granted the Judds a prescriptive easement for both access and
parking purposes. On appeal, the court of appeals affirmed the
easement for access, but limited its scope. It also reversed the
easement for parking. We exercised our certiorari authority to
determine what appeared to be important questions over the correct
standards for establishing prescriptive rights. But after briefing and
oral argument, it is clear this is not a case suitable for certiorari
review.
    ¶2 Under rule 46 of the Utah Rules of Appellate Procedure,
certiorari is generally proper when the court of appeals has rendered
a decision that (1) is in conflict with a prior court of appeals decision
or a decision of this court, (2) has “so far departed from the accepted
and usual course of judicial proceedings” so as to require our
supervision, or (3) has “decided an important question of . . . law”
which should be settled by this court. Because these considerations
are not present in this case, we hold that we improvidently granted
certiorari.1
                             Background
    ¶3 This case involves a dispute over the use of a century-old
circular driveway (Driveway) that sits between two adjacent cabins
in Big Cottonwood Canyon. One cabin is owned by the Bowens, and
the Driveway is located almost entirely on their property. The other
cabin belongs to the Judds. For almost a century, both families used
the Driveway in an amicable manner. But in 2008, a Judd user, for
the first time, refused to move a vehicle off the Driveway at the
Bowens’ request. The Judds claimed they had a prescriptive right to
access and park on the Driveway arising from their historical use of
the Driveway. Shortly thereafter, the Bowens erected gates and other
barricades to limit the Judds’ access to the Driveway and informed
the Judds that they could no longer use the Driveway “absent a court
order.”
    ¶4 Robert Judd III and Charles Allen (collectively, the Judds)
filed a suit against David Bowen in 2011 to establish a prescriptive

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   1 We have simultaneously issued a companion order dismissing
certiorari.


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                          Opinion of the Court

right to use the Driveway for ingress, egress, and parking purposes.
A four-day bench trial was held where the trial court heard
testimony from over twenty witnesses about the historic use of the
Driveway.
   ¶5 The trial court ultimately concluded that the Judds had a
right to a prescriptive easement for “reasonable access and parking
purposes” because the Judds’ use had been “open and notorious,”
“under a claim of right,” “adverse,” and continuous for a
twenty-year prescriptive period. But the trial court did not make
findings regarding, among other things, the exact date the
prescriptive easement was established or to provide the exact
parameters of that easement. The Bowens timely appealed. Neither
party challenged the sufficiency of the trial court’s factual findings
on appeal.
    ¶6 On appeal, a majority panel of the court of appeals held that
the trial court correctly granted the Judds a prescriptive easement on
the Driveway for access, but not for parking.2 Specifically, the court
concluded that the trial court’s findings of fact reasonably supported
its conclusion that the Judds’ use had been continuous, open, and
adverse for twenty years.3 Additionally, it held that the historic
parking use the Judds sought could not be established through
prescriptive easement, because the parking right closely resembles a
possessory right that must be established through an adverse
possession analysis.4 In deciding this issue, the court of appeals
relied upon this court’s precedent in which we distinguished
between rights established through prescription and adverse
possession.5
    ¶7 Both parties submitted a petition for certiorari to this court,
which we granted. In their petition, the Bowens claimed the court of
appeals endorsed an incorrect legal standard for finding prescriptive
easements. The Judds argued that the court of appeals had ventured
into uncharted territory in determining that the parking easement
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   2   Judd v. Bowen, 2017 UT App 56, ¶ 68, 397 P.3d 686.
   3   Id. ¶ 15.
   4   Id. ¶¶ 41–44.
   5 See id. ¶¶ 41, 44 (quoting Nyman v. Anchor Dev., L.L.C., 2003 UT
27, ¶¶ 17–18, 73 P.3d 357).




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                           Opinion of the Court

must be established through adverse possession rather than
prescription. We ultimately granted certiorari to answer what
appeared to be important and unsettled legal questions in the
prescriptive easement arena. We have jurisdiction to hear this case
pursuant to section 78A-3-102(3)(a) of the Utah Code.
                            Standard of Review
    ¶8 We granted certiorari on three issues: (1) whether the court
of appeals erred in its construction and application of the elements of
the legal standard for establishing a prescriptive easement for access;
(2) whether the court of appeals erred in reversing the trial court’s
grant of a prescriptive easement for parking to the Judds; and (3)
whether the court of appeals erred in its ruling concerning the scope
of the easement. “The ultimate determination of whether an
easement exists is a conclusion of law, which we review for
correctness.”6 But 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.”7 This
means an appellate court should “overturn the finding of an
easement only if [it] find[s] that the trial judge’s decision exceeded
the broad discretion granted.”8
                                  Analysis
    ¶9 In their petition for certiorari, the Bowens argued that the
court of appeals erred in “affirm[ing] the district court’s use of
incorrect legal definitions for the[] various elements [of a
prescriptive easement] and erroneously concluded Judd was entitled
to a prescriptive easement.” Conversely, the Judds argued that the
court of appeals’ pronouncement that “a prescriptive parking
easement is more akin to adverse possession than it is to a
prescriptive access easement” is “the first ruling of [its] kind in the
State of Utah” and requires “better definition and guidance.” They
also argued that the court of appeals erred in curtailing the scope of

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   6   Carrier v. Lindquist, 2001 UT 105, ¶ 11, 37 P.3d 1112.
   7   Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998).
   8 Id. As we noted in Coulter & Smith, Ltd. v. Russell, “[o]n a writ of
certiorari, we review the decision of the court of appeals, not that of
the district court, and apply the same standard of review used by the
court of appeals.” 966 P.2d 852, 855 (Utah 1998).


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the access easement. We granted certiorari to answer what appeared
to be important and unsettled legal questions. Upon further review,
we are unable to answer these questions because the trial court did
not make explicit findings as to the date the easement was
established and its parameters, and the parties failed to challenge the
sufficiency of the trial court’s findings. We therefore conclude that
there are no legal questions of particular significance. In fact, none of
the considerations outlined in rule 46 of the Utah Rules of Appellate
Procedure exist here.9 So we hold that certiorari was improvidently
granted.
      ¶10 Rule 46 makes clear that a “[r]eview by a writ of certiorari
. . . will be granted only for special and important reasons.”10 This
means that “certiorari is not a matter of right, but of judicial
discretion.”11 Rule 46 offers several considerations this court uses in
determining whether an issue is sufficiently significant for us to
exercise this discretion. These considerations are particularly
important when we are reviewing an issue involving a lower court’s
highly-factual determination, such as the existence of the easements
at issue, because this court does not function as an error correction
court when operating under our certiorari authority.12
   ¶11 Under rule 46, certiorari is proper when the court of appeals
has rendered a decision that is (1) in conflict with a prior court of
appeals’ decision or a decision of this court, (2) has “so far departed
from the accepted and usual course of judicial proceedings” so as to

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   9   UTAH R. APP. P. 46(a).
   10   Id.
   11 Id.; see also SUP. CT. R. 10 (stating that “certiorari is not a matter
of right, but of judicial discretion” and “will be granted only for
compelling reasons”).
   12 Rule 10 of the Rules of the Supreme Court of the United States
provides that “certiorari is rarely granted when the asserted error
consists of erroneous factual findings or the misapplication of a
properly stated rule of law.” We agree. Like the United States
Supreme Court, we are a court of last resort and so share the same
interest in utilizing our certiorari power to resolve only truly
“compelling” legal questions. See SUP. CT. R. 10. So we generally will
not grant certiorari to review a district court’s factual findings or
misapplications of correct law.


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                                 JUDD v. BOWEN
                           Opinion of the Court

require this court’s supervision, or (3) has “decided an important
question of . . . law” which should be settled by this court.13 None of
these considerations are present in this case.
    ¶12 First, the court of appeals’ decision is not in conflict with
any prior court of appeals decision or any decision of this court.
Rather, the court relied on legal principles repeatedly approved by
this court and the court of appeals. The court stated the following as
the operative prescriptive easement standard: “[t]o attain legal
recognition of a prescriptive easement in Utah, the claimant must
prove by clear and convincing evidence that the claimant’s ‘use of
another’s land was open, continuous, and adverse under a claim of
right for a period of twenty years.’”14 For support, it relied upon
well-established caselaw from both this court and the court of
appeals identifying the same legal standard.15 The court’s decision
did not alter or amend this standard, and its application of these
principles was in conformity with Utah Supreme Court and court of
appeals caselaw.16 So it cannot be said that its decision is in conflict
with previous judicial decisions.
    ¶13 Second, because the court of appeals relied upon
well-settled law, we hold that it did not “depart[] from the accepted
and usual course of judicial proceedings” in issuing its ruling. 17 As
stated above, in affirming the trial court’s grant of an access
easement to the Judds, the court of appeals recited the legal standard

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   13   UTAH R. APP. P. 46(a).
   14See Judd v. Bowen, 2017 UT App 56, ¶ 10, 397 P.3d 686 (citation
omitted).
   15 Id. Specifically, the court relied upon Orton v. Carter, 970 P.2d
1254, 1258 (Utah 1998) and Lunt v. Lance, 2008 UT App 192, ¶ 18, 186
P.3d 978 for this general standard. The court then went through each
element of the prescriptive easement standard, relying on numerous
other Utah Supreme Court cases where we have defined each
element in the prescriptive easement individually. See Judd, 2017 UT
App 56, ¶¶ 10–31.
   16 See, e.g., Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998);
Crane v. Crane, 683 P.2d 1062, 1064 (Utah 1984); Richards v. Pines
Ranch, Inc., 559 P.2d 948, 949 (Utah 1977); Lunt v. Kitchens, 260 P.2d
535, 537 (Utah 1953); Jensen v. Gerrard, 39 P.2d 1070, 1072 (Utah 1935).
   17   UTAH R. APP. P. 46(a)(3).


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                          Opinion of the Court

that use must be continuous, open, and adverse for twenty years.18
Its articulation of the standard was not new or even different. Rather,
the court merely parroted the exact language this court has been
invoking for almost a hundred years.19 It then concluded, as had
been done in every other prescriptive easement case, that the trial
court’s findings of fact reasonably supported its legal conclusion that
the Judds’ use had been continuous, open, and adverse for the
requisite prescriptive period.20 Nothing the court of appeals did was
unusual.
   ¶14 Furthermore, in reversing the trial court’s grant of a
prescriptive parking easement, the court of appeals applied
well-settled law to determine that the parking easement in this case
exceeded the bounds of a prescriptive easement and so required an
adverse possession analysis.21 The court did not categorically
preclude parking easements by prescription. It simply concluded
that allowing the Judds unrestricted parking use would

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   18   Judd, 2017 UT App 56, ¶ 10.
   19 Compare id., with Nyman v. Anchor Dev., L.L.C., 2003 UT 27, ¶ 18,
73 P.3d 357 (“A prescriptive easement is created when the party
claiming the prescriptive easement can prove that ‘use of another’s
land was open, continuous, and adverse under a claim of right for a
period of twenty years.’” (citation omitted)); Edgell v. Canning, 1999
UT 21, ¶ 8, 976 P.2d 1193 (“[A] claim for a prescriptive easement
must establish a use that is open, notorious, adverse, and continuous
for at least twenty years.”); Marchant v. Park City, 788 P.2d 520, 524
(Utah 1990) (“In order to establish a prescriptive easement to the
property, plaintiffs must establish a use that is (1) open, (2)
notorious, (3) adverse, and (4) continuous for at least 20 years.”);
Crane, 683 P.2d at 1064 (“An easement by prescription arises under
our common law from a use of the servient estate that is ‘open,
notorious, adverse, and continuous for a period of 20 years.’”
(quoting Jensen v. Brown, 639 P.2d 150, 152 (Utah 1981)); Richards, 559
P.2d at 949 (“A right-of-way by prescription is established by open,
notorious, adverse use thereof for a period of twenty years.”);
Gerrard, 39 P.2d at 1072 (“[T]he use for the prescriptive period must
be peaceable, continuous, open, [and] adverse as of right [for twenty
years].”).
   20   Judd, 2017 UT App 56, ¶¶ 12–30.
   21   Id. ¶¶ 46, 49–50 (relying on Nyman, 2003 UT 27, ¶ 18).


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                              JUDD v. BOWEN
                           Opinion of the Court

“impermissibly exclude[] the Bowens from meaningful ‘use and
enjoyment’ of the Driveway.”22 In arriving at this conclusion, the
court relied upon the trial court’s finding that the Driveway “is a
‘narrow’ right-of-way ‘wide enough for only one vehicle.’”23 With
this “narrow” view of the Driveway in mind, the court concluded
that the parking easement would rob the Bowens of all meaningful
use and enjoyment of the Driveway,24 and so, under our
jurisprudence, it “more closely resembles the sort of rights typically
associated with adverse possession rather than the more limited
easement rights acquirable by prescription.”25 Our caselaw had
made that point clear.26 So we cannot say that the court of appeals
“so far departed from the accepted and usual course of judicial
proceedings” so as to require our supervision with respect to its
analysis on this issue.27
    ¶15 Lastly, we hold that no legal questions of particular
significance are presented in this case. The court of appeals’
affirmance of the trial court’s grant of an access easement to the

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   22   Id. ¶ 36.
   23   Id. ¶ 34.
   24   Id. ¶ 36.
   25   Id. ¶ 49.
   26  See Nyman, 2003 UT 27, ¶¶ 17–18.. In Nyman, we held that a
claimant did not have a right to a prescriptive easement allowing
him to continue to use his garage, which was partially built on his
neighbor’s property. Id. We reasoned that prescriptive rights were
reserved for limited use on another’s property, not permanent
exclusive occupancy. Id. We also stated that where a use “deprive[s]
[a property owner] of all use and enjoyment of the land,” the
plaintiff may not establish a right to that use through prescription.
Id. ¶ 18. Here, the court of appeals concluded that the Judds’ parking
easement was unlimited and so granted the Judds permanent
exclusive occupancy. Judd, 2017 UT App 56, ¶ 36. It also reasoned
that, like the garage in Nyman, the parking use deprived the Bowens
of meaningful use and enjoyment of the Driveway. Id. So it held that
such unrestricted parking use could only be established through
adverse possession in this case. Id. In following the precedent set in
Nyman, the court of appeals did not depart from well-settled law.
   27   See UTAH R. APP. P. 46(a)(3).


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                          Opinion of the Court

Judds does not present a significant legal question. While the
existence of an easement is a conclusion of law, the separate question
of whether the Judds’ use was continuous, open, and adverse all
require highly-factual inquiries.28 If we were to review this case on
the merits, we would simply be providing a second review of the
district court’s highly-factual determination concerning the access
easement, which we decline to do.29 This analysis would not require
us to answer any important questions of law.
    ¶16 Similarly, the court of appeals’ reversal of the trial court’s
grant of a parking easement does not present a significant legal
question. The court of appeals concluded that in the particular
circumstances of this case, awarding the Judds a prescriptive parking
easement was inappropriate because it would “exclude[] the Bowens
from meaningful ‘use and enjoyment’ of the Driveway.”30 In so
holding, the court of appeals did not make a categorical
determination as to the viability of prescriptive parking easements. It
merely determined that under these circumstances in which the land
was limited and the right to park was unrestricted, a prescriptive
parking easement was not appropriate.31


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   28 Valcarce, 961 P.2d at 311. Although the Bowens suggest that the
court of appeals erred in “affirm[ing] the district court’s use of
incorrect legal definitions for the[] various elements [of a
prescriptive easement],” without more complete factual findings
below there is no indication such definitions or elements were
inconsistent with well-established caselaw. Had the parties
challenged the inadequacy of the trial court’s factual findings,
particularly the absence of the exact date the easement was
established and the parameters of that easement, the legal definitions
the trial court used may have been problematic. But since neither
party challenged the absence of these factual findings, and the
factual inadequacies remain, we are unable to reach these issues.
   29 See NLRB v. Hendricks Cty. Rural Elec. Membership Corp., 454 U.S.
170, 176 n.8 (1981) (dismissing a writ of certiorari as improvidently
granted when it became apparent after briefing and oral argument
that the Court was “presented primarily with a question of fact,
which does not merit Court review”).
   30   Judd, 2017 UT App 56, ¶ 36.
   31   Id.


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                           Opinion of the Court

    ¶17 The Bowens urge this court to use this case as an
opportunity to categorically eliminate the possibility of prescriptive
parking easements. But since the court of appeals did not make a
categorical determination concerning the viability of prescriptive
parking easements, we conclude that this would not be an
appropriate case for us to address this issue. In determining that the
parking easement granted by the trial court required an adverse
possession analysis, the court of appeals simply followed the
precedent set in Nyman in determining that a prescriptive parking
easement would be inappropriate in this particular case. So we
conclude that this case presents no significant legal questions for this
court to answer at this time. And because none of the considerations
listed in rule 46 are present here, we revoke our grant of certiorari.
    ¶18 In doing so, we emphasize our commitment to utilizing
certiorari authority in accordance with rule 46. While the rule does
not list every circumstance where certiorari is proper, it does outline
most of the “special and important reasons” for which we will grant
such review.32 Accordingly, we will not hesitate to revoke certiorari
when parties inaccurately indicate in their petitions the presence of
the considerations outlined in rule 46 or it becomes clear that such
considerations are lacking.
                                  Conclusion
    ¶19 We improvidently granted certiorari in this case. This is a
factually-intensive case in which the court of appeals simply applied
well-settled law to the facts before it. It did not “so far depart[] from
the accepted and usual course of judicial proceedings” so as to
require our supervision, and there are no significant legal questions
presented in this case that would make granting certiorari
appropriate under rule 46.33 So we revoke our certiorari review. We
encourage future parties to keep in mind the guidelines we have set
out in this opinion as they prepare their petitions for certiorari.




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   32   UTAH R. APP. P. 46(a).
   33   UTAH R. APP. P. 46(a).


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