2005 UT 74
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Jamie Evans,
No. 20040739
Plaintiff and Petitioner,
v.
F I L E D
Board of County Commissioners,
Defendant and Respondent.
November 4, 2005
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Fourth District, Provo
The Honorable Fred D. Howard
No. 960400821
Attorneys: Alexander Dushku, Daniel J. McDonald, Jason W.
Beutler, Salt Lake City, for plaintiff
Craig V. Wentz, Barton H. Kunz, Salt Lake City,
for defendant
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On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
¶1
Jamie Evans claims an easement over land owned by the
Board of County Commissioners of Utah County. The court of
appeals reversed the trial court's summary judgment finding that
Mr. Evans's easement was too vague to be enforced. We affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2
In 1926, Knight Investment Company recorded the Ironton
Plat, a subdivision located in Utah County. The plat is roughly
rectangular in shape with its length running north to south.
Eight east-to-west streets dedicated to public use divide the
plat into seven blocks upon which lots are laid out. Pine Street
is the southernmost of these streets. In 1935, the State of Utah
realigned Highway 89 to traverse the length of the west side of
the plat as part of its route from Provo City to Springville
City. Pine Street, which intersects Highway 89, is the only of
the Ironton streets to feature prominently in this appeal.

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¶3
At a later date, R.L. Bird Company acquired land within
the Ironton Plat immediately south of Pine Street along with
several additional lots located along the plat's eastern
boundary. Bird also obtained title to a substantial tract of
land surrounding the southeast corner of the plat, which we will
call the corner property. The corner property abutted the strip
of land Bird owned south of Pine Street and the lots Bird owned
on the east boundary of the plat.
¶4
In 1983, Bird quit-claimed its interest in its land
within the plat, the strip south of Pine Street and the lots, to
Utah County. Bird retained ownership of the corner property and,
as part of the conveyance to Utah County, reserved an easement
and right-of-way over the strip and Pine Street to provide access
to the corner property from Highway 89. The reservation read:
Reserving to the grantor the public use and
right-of-way over and into Pine Street from
the State Highway and a 56' wide right-of-way
over and across the last parcel of land
[included in the quit claim deed (the
Strip)], from Pine Street to connect with
grantor's remaining property over which Utah
County agrees to build a good gravel road
within 90 days of the date of this instrument
to provide access to grantor's remaining
land.
¶5
As of the date Utah County acquired Bird's interest in
the plat the subdivision had not been developed and the dedicated
streets, including Pine Street, had not been constructed. Utah
County subsequently built a public works facility comprised of a
public works building, a service station, and a parking lot on
part of its property within Ironton Plat. It also vacated three
streets at the plat's south end, but did not vacate Pine Street.
Although Pine Street retained its status as a dedicated street,
Utah County removed a substantial amount of earth in and around
it in the course of building the public works facility.
¶6
In 1995, Bird conveyed the corner property, including
the easement and right-of-way to Jamie and Terry Evans.1 The
Evanses sued Utah County seeking, among other forms of relief not
relevant to this appeal, enforcement of the easement. Utah

1 The original deed conveying the corner property from Bird
to the Evanses did not refer to the easement. Bird later filed a
corrected deed that did describe the easement and right-of-way.
This course of events is not germane, however, to this appeal.
No. 20040739
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County resisted the enforceablity of the easement on the grounds
that the deed did not identify its location with sufficient
specificity. The trial court agreed.
¶7
On appeal, the court of appeals reversed. It
characterized the grant in the deed as an enforceable "floating"
easement. We granted certiorari to review the court of appeals'
decision.
STANDARD OF REVIEW
¶8
"On certiorari, we review the decision of the court of
appeals and not that of the district court." State v. Brake,
2004 UT 95, ¶ 11, 103 P.3d 699. Our review is for correctness,
and we grant no deference to the court of appeals' opinion.
ANALYSIS
¶9
The court of appeals determined that the absence of a
description of the location of the easement in the Evans deed did
not amount to a fatal omission of an essential term. It reached
this conclusion after analyzing its features as a "floating" or
"roving" easement. The court drew the term "floating or roving
easement" from Salt Lake City v. J.B. & R.E. Walker, 253 P.2d
365, 368 (1953), where we used it to describe an easement grant
that does not fix the location of the easement
but which may be fixed by agreement of the
parties, the [acquiescent] use of the parties
in a particular way . . . for a considerable
period of time, or by one party in whom the
grant vests the right of selection or the
right to fix the grant, or where the rule of
necessity determines the location because any
other place would annul, ruin or militate
against the grant.
Id. at 368.
¶10
Although the court of appeals' analytical approach was,
in many respects, equal to the task of properly resolving the
issue before it, the floating easement definition used in Walker
did not account for the factual circumstance we face here: no
express description of the location of the Evanses' easement and
no vesting in anyone the authority to position the easement.
¶11
We have chosen to follow a different course than that
taken by the court of appeals, but one that reaches the same
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No. 20040739

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result. Our approach is one that we believe tests more directly
and reliably the merits of the County's claim that an express
term in the Evanses' deed fixing the location of the easement on
the strip was essential to its enforceability.
¶12
Guiding and informing our approach to ascertaining
whether the Evanses' easement description contained all essential
terms is the core principle that the burden of the servitude must
be communicated to the owner of the servient estate with
sufficient clarity to understand it. The principle is an
application to easements of the basic concepts of the law of
contracts that the duties of a party to a contract must be
described in detail sufficient to make it possible to ascertain
whether the agreement has been kept or broken. Nielsen v. Gold's
Gym, 2003 UT 37, ¶ 13, 78 P.3d 600.
¶13
Of course, the goal of communicating the scope of a
servitude is most easily achieved by fixing the location of the
easement in descriptive language within a deed. Although
certainly desirable in most instances, language fixing the
location of an easement is not always necessary when other terms
of the easement safeguard the servient estate from the risk that
its burden may be greater than that for which it bargained.
¶14
The facts of this case illustrate this point. The
minimum extent of the servitude can be easily extracted from the
text of the deed. The area of the servient estate, the strip, is
precisely described, as is the width of the easement, fifty-six
feet. At minimum, the length of the easement would be equal to
the width of the strip at a point bounded by Pine Street on one
side and the Evanses' property on the other. The minimum gross
area of the strip subject to the servitude can be easily
calculated by multiplying the length by the width. The dominant
estate, the Evanses' corner property, is identified. The stated
purpose of the easement, a road connecting Pine Street to the
corner property, is clear. Whatever uncertainty the County may
have about the ultimate location of the Evanses' easement, the
deed unambiguously communicated a full complement of data
describing its minimum burden to the County's fee interest.
Although the location of the easement was not fixed, the deed
language removed from all doubt that the grantor and grantee
intended to create an easement for a particular purpose, covering
an ascertainable minimum area.
¶15
This is not to diminish the importance of the location
of the Evanses' easement on the strip. The three word phrase,
"location, location, location," has earned its claim to hackneyed
banality on the strength of the truth that it imparts about real
No. 20040739
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property. There can be little question that where the Evanses'
easement finally alights will materially affect its burden on the
County's land. Were the legal analysis to end here, we would
agree with the County that a locating description for the
easement was an essential term and that without it the easement
would be unenforceable. But the analysis need not, and should
not, end here.
¶16
There is no dispute that the County was fully aware
that the strip was burdened by an easement. Based on the
language of the deed it could determine with precision what its
minimum burden was. This sizeable quantity of evidence firmly
establishes an intent to create an easement and unambiguously
defines all essential features of the servitude except its
location. Confronted with this evidence, we have an obligation
to explore whether the deed's failure to identify the location of
the easement can be remedied without altering in any material way
the bargain struck between the grantor and grantee. Corbin on
Contracts encourages this effort, stating:
If the parties have concluded a transaction
in which it appears that they intend to make
a contract, the court should not frustrate
their intention if it is possible to reach a
fair and just result, even though this
requires a choice among conflicting meanings
and the filling of some gaps that the parties
have left.
Corbin on Contracts, § 4.1 (rev. ed. 1993).
¶17
The role of the court as contract "gap filler" is
neither new nor revolutionary. See, e.g., Homestead Golf Club,
Inc. v. Pride Stables, 224 F.3d 1195 (10th Cir. 2000); Honolulu
Waterfront Ltd. P'ship v. Aloha Tower Dev. Corp., 692 F. Supp.
1230 (D. Haw. 1988); Bergin v. Century 21 Real Estate Corp., 2000
U.S. Dist. Lexis 2088 (D.N.Y. 2000); Zvonik v. Zvonik, 435 A.2d
1236 (Pa. 1981); Alaimo v. Tsunoda, 215 Cal. App. 2d 94 (Ct. App.
1963); Sterling v. Taylor, 113 Cal. App. 4th 931 (Ct. App. 2003);
In re Sing Chong Co., 617 P.2d 578 (Haw. Ct. App. 1980); Wolvos
v. Meyer, 668 N.E.2d 671 (Ind. 1996); Nusbaum v. Saffell, 313
A.2d 837 (Md. 1974); Oglebay Norton Co. v. Armco, Inc., 556
N.E.2d 515 (Ohio 1990); Genest v. John Glenn Corp., 696 P.2d 1058
(Or. 1985).
¶18
The location-fixing gap in the Evanses' deed is one
that we are well suited to fill. We conclude that the most
appropriate method to fix the site of the easement is to assign
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No. 20040739

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to the County the authority to select its location. In
exercising this authority, the County enjoys considerable
discretion, limited by a duty to conform the positioning of the
easement to the stated purposes of the easement reservation. See
Barton v. Tsern, 928 P.2d 368 (Utah 1996) (holding it is
appropriate to fill in a missing term because we are not altering
the agreement).
¶19
We draw our confidence in selecting this approach from
several sources. First, the designation of the County to locate
the easement offers assurance that our "gap-filling" does not
alter the scope of the servitude for which the County bargained.
The County may, if it chooses, position the easement over that
portion of the strip that conforms to the minimum amount of
surface area contemplated in the deed description. If the
alterations made by the County to the strip make this site
impractical, the County is at liberty to select an alternate
location fifty-six feet in width that provides the Evanses access
from the corner property to Pine Street. Thus the opportunity to
position the easement removes the issue of whether location
selection is an essential term from the field of battle with
neither side sustaining injury.
¶20
This approach to locating unfixed easements has enjoyed
general acceptance among courts and commentators. In adopting
this approach we join a majority of jurisdictions that have
confronted this issue. The following jurisdictions that have
faced the question of how to deal with the unfixed easement
location problem and have adopted some version of the model in
which the owner of the servient estate is granted the first
opportunity to define the easement location. Arkansas Val. Elec.
Co-op Corp. v. Brinks, 400 S.W.2d 278, 279 (Ark. 1966); Ballard
v. Titus, 110 P. 118, 122 (Cal. 1910); Bethel v. Van Stone, 817
P.2d 188, 193-94 (Idaho App. 1991); Daniel v. Clarkson, 338
S.W.2d 691, 692-93 (Ky. 1960); Larson v. Amundson, 414 N.W.2d
413, 417 (Minn. App. 1987); Graves v. Gerber, 302 N.W.2d 717, 720
(Neb. 1981); Sussex Rural Elec. Co-op v. Wantage Tp., 526 A.2d
259, 263-64 (N.J. Super. App. Div. 1987); Pomygalski v. Eagle
Lake Farms, Inc., 596 N.Y.S.2d 535, 537 (N.Y. App. Div. 1993);
McConnell v. Golden, 247 A.2d 909, 912 (R.I. 1968); Smith v.
Comm'rs of Pub. Works, 441 S.E.2d 331, 337 (S.C. App. 1994);
Vinson v. Brown, 80 S.W.3d 221, 228 (Tex. App. 2002); Patch v.
Baird, 435 A.2d 690, 691-92 (Vt. 1981); R.C.R., Inc. v. Rainbow
Canyon, Inc., 978 P.2d 581, 588 (Wyo. 1999).
¶21
Leading commentators have also endorsed the assignment
of locating authority to the holder of the servient estate over
voiding the easement. In their treatise, The Law of Easements &
No. 20040739
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Licenses in Land, Professors Bruce and Ely summarize with
approval that doing so is considered by "many jurisdictions" a
practical approach to the problem. In these
states, the owner of the servient estate is
entitled to designate a reasonable location
for the easement. If the servient owner
fails to make such a designation within a
reasonable period, the easement holder may
select a reasonable route. If the parties
are unable to reach an agreement, a court may
specify a location for the easement.
Jon W. Bruce & James W. Ely, Jr., The Law of Easements and
Licenses in Land ¶ 7.02 [2][a] (rev. ed. 2000).
¶22
This pragmatic approach to easement location overcomes
the County's objection that the Evanses' easement must fail
because it cannot be "construed as to burden the servient estate
only to the degree necessary to satisfy the purpose described in
the grant." Weggeland v. Ujifusa, 384 P.2d 590, 591 (Utah 1963).
Under our approach, the County is empowered to provide this
assurance. In fact, all of the County's assertions that the term
locating the easement is essential are variations on the theme
that express descriptive language is required for the County to
get what it bargained for. This complaint is unavailable to the
County under the approach we announce today. Accordingly, we
affirm the court of appeals.
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¶23
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring's
opinion.
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