A client of Nielsen & Senior, Fred Homer, was the owner of a business and property located for many years near the southwest corner of 1300 South and 2100 East in Salt Lake City, Utah.  In the late 1940’s, Smiths, the original developers of this area, constructed a grocery store on the property near the corner.   They then sold a parcel south of the grocery store to the Deweys, Mrs. Smith’s parents, who constructed a commercial building on that parcel, which included a drugstore on the ground level and apartments on the upper level.  The second floor apartments were constructed piecemeal, beginning in approximately 1954.  The apartments encroached over the roof of the Smiths’ single story store building.  The width of the encroachment varied from two-tenths to seven-tenths of a foot.  

 

In the early 1950’s, both the Smiths and the Deweys, separately, purchased lots directly behind or west of their commercial buildings to be used for parking.  Parking was also available in front of their two buildings.  Originally, customers pulled directly from 2100 East into the parking areas in front of the buildings until approximately 1953 when Salt Lake City improved 2100 East and added curb cuts.  After that time, vehicles parking in front had to enter and exit the parking by way of two curb cuts, one of which was in front of the Smiths’ property.  

 

Parking in the rear of the buildings was accessed either from 1300 South or from 2100 East through a 26-foot wide alley south of the Smiths’ and Deweys’ properties (the “Alley”).  

 

In November of 1953, the Smiths, the Deweys, and the owner of the Alley entered into an agreement to formalize their rights of access and parking on their respective properties.  

 

In 1976, Bonneville Drug purchased Deweys’ property, including the parking areas in front and to the rear of the building.  Bonneville Drug subsequently transferred the property to Fred Homer, who was its sole shareholder.  

 

In 1986, Mr. Smith complained to the owner of the Alley that it was being partially blocked by parked vehicles and that the improvements the owner had made along the Alley had narrowed the right-of-way, thereby impeding its use by semi-trucks.  Smith proposed that the parties terminate the reciprocal rights-of-way, but the owner of the Alley would not agree to do so.  

 

The Smiths’ dispute seemed to die down until approximately two and one-half years later when they, without notice to either Homer or the Alley owner, placed concrete barriers topped with a chain link fence across the entire fifty foot right-of-way behind the Smiths’ building.  Smith also placed a concrete barrier in front of his building, thereby impeding, in part, the traditional access to the Homer property.  The rear barrier completely prevented Homer, or any of his customers, employees, or tenants from accessing either 1300 South through the fifty foot right-of-way, or accessing the parking behind the Homer’s building from 1300 South.  Because the parking areas in front of the building could only be accessed at the curb cuts, the front barrier made it difficult, if not impossible, at times, to park and maneuver there.  

 

Homer then filed suit against the Smiths seeking an order that (1) the barriers be removed permanently and (2) enjoining Smiths permanently from erecting additional barriers and interfering with Homer’s right to enjoy the right-of-way.  Homer also sought a judgment for damages.  Smiths counterclaimed, alleging that Homer’s second floor apartments encroached on the Smiths’ property. 

 

Following several days of a bench trial, the trial court determined that (1) Homer was entitled to a prescriptive easement across the front and rear of the Smiths’ property; (2) that the Smiths were not entitled to judgment on their counterclaim because the encroaching apartments had created a boundary by acquiescence; (3) that the improvements to the twenty-six foot alley right-of-way did not violate the deeds of right-of-way or the 1953 agreement; (4) ordered that the barricades be removed; and (5) permanently enjoined Smiths from erecting additional barriers across the front or rear of the property and from interfering with Homer’s right to enjoy the right-of-ways.  

 

The Smiths appealed, claiming the trial court’s rulings and judgment were erroneous.  Smiths also objected to the trial court’s ruling permitting Homer to tack his use of the right-of-ways to that of his predecessor in order to establish the required twenty-year prescriptive period and asserted that the trial court incorrectly determined that even though Homer’s apartments encroached on Smiths’ property, the encroachment could remain under the doctrine of boundary by acquiescence.

 

The Utah Court of Appeals affirmed the trial court’s findings and conclusion that Homer and his predeccessors-in-interest did travel regularly over the Smiths’ property in order to reach the Homer building and had done so for more than the twenty years necessary to establish a prescriptive easement, and that while it was true that public use, in general, is not enough to establish a prescriptive easement, use of the right-of-ways by delivery persons, tenants, customers and patrons of Homer did satisfy the requirement necessary to establish a prescriptive easement.  The court further found that the record evidence supported the trial court’s finding that Homer’s use of the Smiths’ property was adverse and that the family relationship between the Deweys and the Smiths did not translate to a finding that the Deweys’ use was permissive, in view of the fact that the Smiths’ testimony regarding the alleged permission given by Smiths to the Deweys, both of whom were deceased at the time of the trial, was “self-serving and not believable in view of [Smiths’] conduct, demeanor, and substantive testimony during trial.”  

 

The Court of Appeals also held that Homer could tack his use and that of his customers and tenants to the use by the Deweys and their tenants in order to establish the required twenty-year period.  

 

Finally, the Court of Appeals considered public policy in affirming the trial court’s decision that a prescriptive easement had been created: “As the trial court stated in its findings, the doctrine of prescriptive easement was designed to give legal sanction to property arrangements that have existed peacefully, openly, continuously and without objection for the prescriptive period, and that in this matter the court sought to prevent the very thing that happened in this case, that is, a dispute after several decades of amicable use.”  See Homer v. Smith, 866 P.2d 622 (Utah App. 1993).  

 

The Smiths’ petitioned the Utah Supreme Court to review the decision of the Court of Appeals, but the petition was denied.  

 

The Homer case has been cited favorably in a number of subsequent cases relating to prescriptive easements and the establishment of boundary by acquiescence.