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Show 30. 1973 MONDAY-APR- IL THE DAILY RECORD PAGE THREE In the Supreme Court of the State of Utah Aspen Acres Association, a C6rp0rtin' conveyances as an appurtenance to the lands of the grantor passed to the grantee. Since defendant has succeeded to the interest of the developer, it has an easement over the roads within the subdivision. Plaintiff and Respondent, No. 12825 v. Seven Associates, Inc. , a Corporation, Defendant and Appellant. CALLISTER. In Rollo v. Nelson FILED April 16, 1973 Chief Justice; Aspen Acres Incorporated, the developer, acquired in Summit County a half section of land. Thereafter, in May, 1962, it filed a plat of a mountain home subdivision covering approximately 75 acres of the section. To reach the subdivision from the public highway it is necessary to cross a strip of land which was owned by the developer and to which defendant has succeeded in interest. The developer, in its conveyances to individual lot owners in the y to and from the subdivision, guaranteed a property. In addition, the developer agreed to share water from an unnamed spring and pipe to the tract. The developer, as seller, in the conveyances, reserved a right-of-wfor construction and maintenance of water pipe and power transmission lines. The conveyances to the individual lot owners included the land to the center of the platted streets, subject to an easement for the use and benefit of any person who owned or might acquire property in that tract known as Aspen Acres. right-of-wa- ay In August, 1962, a meeting was held for the purpose of forming plaintiff, a organisation for the owners of property in Aspen Acres. The president of the developer of the subdivision, Max G. Bateman, was leaving the area and wished to turn the responsibilities of maintaining the roads and water system over to the association. In January, 1963,. the developer and Max Bateman conveyed certain water rights and stock certificates to plaintiff; the conveyance provided: non-pro- fit These water rights and stock certificates are executed and delivered to Aspen Acres Association for the benefit of those persons and corporations now owning lots in Aspen Acres Incorporated Subdivision, and for the benefit of those who may hereafter own lands therein. Said water rights shall be distributed to said beneficiaries in accordance with the Articles of Association of the grantee. have expended money for the .maintenance of the roads and water system. The conflicts which precipitated this action centered on who was and water system and the financing responsible for the maintenance of the roads water the system and make additional therefor, the right of defendant to extend the right of plaintiff to erect and attachments as it further developed the section, delocked gates to control access to the subdivision and to curtail the use by fendant of the roads within the subdivision- - gift parties on the concept that 'the developer had a continuing duty to maintain the roads and water lines, although there is The no specific contractual or statutory provision cited to sustain this position. trial court then reasoned that since the president of the developer encouraged cer-tai- n and participated in the formation of plaintiff, the developer had delegated when defendant acquired all of rights and duties to plaintiff. Subsequently, the property, the trial court concluded developer's right, title, and interest in duthat defendant was liable for all of the developer's duties; but, since these to plaintiff was the agent of defendant. trial court predicated its decision ties had been delegated The plaintiff, trial court ruled that in regard to the roadway which crosses defend- was trustee for ant's property from the highway to the subdivision that plaintiff the following rights: (1) to enter all of the lot owners in the 12 section and had to make reasonable for maintenance, improvement and protection of the road (2) owners of the land and their invitees regulations and to restrict access to the (4) to mainwithin the tract, (3) to erect and maintain access control devices, all persons and tain action, for contributions for cost, of maintenance against any contribution Plaintiff was held te have a having a legal obligation to make such Plaintiff was correlative duty tomairftaia the rwdwiy i reasonableto tipair. the road system further determined to have the right to maintain and improve for contribution for maintain suit, to and within the subdivided area, of the tract maintenance costs. court erred ingranting plaintiff On .pp.nl, defendant nr,., that the trial wtth.n and without the .ub-- di the right to control, including acce.., the cement, denial of ,d'vision. Defendant cite. a. farther error the acro.a the road, within the .ubd.yia.on daring that defendant ha. an ...ement for access to its lands. .ection. Each conveyance the developer owned the entire 12 Initially, made thereafter provided: the above de.cribed right of "Subject to an ...ement along now owning or who may way for the u.e and benefit of any per.on known a. A.pen ere., acquire property in the tract subsequent therefore, conclude that each owner of a lot within the 12 section. has an easement appurtenant to his land over the roads within the entire 12 section referred to by the developer as the "Aspen Acre Tract. " May the rights conferred upon plaintiff by the the roads be sustained? trial court to control In Stanley Heights Property Owners Assoc.. Inc, v. Whiteside3 a similar issue was raised. The individual lot owners in a mountain subdivision received in their conveyances a right of way over the roads in the subdivision, with a right of ingress and egress. Thereafter, the grantor conveyed to the property owners association the road and roadways platted in the subdivision, subject to the existing easements,. The owners association thereafter commenced construction of cattle guards over roadways leading into the subdivision. The trial court held that the Association took nothing under the deed and was a stranger seeking to obstruct the roads of the subdivision and thus' should be enjoined from building cattle guards. The Supreme Court of Colorado affirmed the judgment, stating: .cl If these passageways were conveyed to the owners-o- f the lots for their accommodation in gaining ingress or egress to and from their properties, either for themselves or such as they may expressly or impliedly invite upon their premises, the grant established private ways. Citation The fact that the roads and roadways in question were not built for the convenience of the Association leaves the Association without any interest as to who uses them At best, the Association is a mere volunteer in its attempt to interfere with the use of the roads and roadways in Citation Stanley Heights r- r i The trial court further committed error in its determination that plaintiff had a duty to maintain the roads and a right to maintain an action against the owners for their share of the costs of maintenance. Except for defendant, there were no individual owners of these easements before the court. In Bernard v. Gaumer, the court stated: e The subject of the road upkeep and maintenance on who filed no pleadings in the litigation and, being indivisible because of possible equitable distribution of the responsibility among the respective owners of the dominant and servient tenements, could not be litigated in the cases under . . . I its face concerns parties K' Besides proof should be required of the extent of use by the several tenements in order to afford the trial court bases for assessing upkeep against them. Absent any agreement on the question of maintenance oi a private way, the burden of upkeep should be distributed between dominant and servient tenements in proportion to their relative use of the road, as nearly as such may be ascertained. Citations hr i. -- i. . .'.i . 3. 151 Colo. 429, 378 P. 2d 399, 401 (1963). 4. Big Cottonwood Tanner Ditch Co. v. Moyle, 109 Utah 213, 239, 174 P. 148(1946), 5. 146 Colo 409, 361 P. 2d 778, 781 (1961). In the instant action, there 2(1 is a difficult problem presented, but it may not be resolved by granting the powers and functions of a municipal corporation to a private association composed of some of the lot owners in the tract. , . .fc 'V. In plaintiff's pleadings, it made demand on defendant to convey easements for the installation, maintenance, and repair of the water system as well as appurtenant easements as might be appropriate for the maintenance of the water system. Plaintiff proceeded on the theory that the developer, at the time plaintiff was organized, had made certain oral representations to convey certain interests in the water system in return for plaintiff's undertaking the maintenance thereof. In response thereto, defendant pleaded the statute of frauds and statute of limitations. The day prior to trial, plaintiff located a document in its files of which it represented it had no previous knowledge, and plaintiff changed its theory. The document which is hereinafter identified as exhibit 15 is dated May 22, 1963, and is allegedly a contract between plaintiff and defendant. The document provides: , At such time as Associates acquires title to the water rights and water system including tanks and equipment and rights-o- fway pertaining thereto, that it will transfer said rights, systems, to the Association, which tanks, equipment and rights-of-wa- y Association then agrees to assume full responsibility in connec- -. tion with the maintenance, development and operation of such . 1 The document was signed Aspen Acres Association by Kenneth L. Stall r and Seven Associates by Walter R. Farmer. The trial court found exhibit 15 a binding contract and ordered defendant to convey to plaintiff, as trustee for I i i review. . t :'v' ' We water system. wa. to re.erv. .0 leg.! effect of thl. provi.ion the lands of the his assigns an easement appurtenant over the easement reserved by prior each conveyance by the developer, The and Johnson v. Peck, 90 Utah 544, 549, 63 P. 2d 251 (1937). 2. Rollo v. Nelson, 34 Utah 116, 124, 96 P.263 (1908). 1. In the instanv plaintiff owns no real property within the tract and, thereno right to interfere or control the easements appurtenant to the has fore, realty therein. Furthermore, the membership in plaintiff is composed of only a portion of the lot owners in the tract; these members may not interfere, restrict, or control the easement they enjoy in common with the nonmembers. Defendant was incorporated by seven lot owners in Aspen Acres in March, 1963, for the purpose of acquiring the developer's remaining interest in the half section. On March 27, 1963, defendant by real estate contract acquired 18 lots in the subdivision and the lands remaining undeveloped in this half section. The developer agreed to sell defendant the water system; defendant assumed the responsibility of running water lines to fifteen lots, which were specifically identified. The contract then provided that the liabilities to be incurred by the buyer were to be limited to the specified lots. The Servitudes, adopted by the owner of land, which are plainly visible or notorious, and from the character of which it may fairly be presumed that he intended their preservation as necessary to the convenient enjoyment of his property, become, when the landB are divided and pass into other hands, permanent appurtenances thereto, and the owner of either the dominant nor servient portions of the land has power adversely to interfere with their proper use and enjoyment. L. M. Cummings, Clerk Plaintiff, an association composed of some but not all of the persons owning lots in a subdiid.ion in Summit County, initiated this action to determine the rights and duties of each of the parties concerning the roads and water system within the subdivision. Defendant, by conveyance, had succeeded to all the right, title, and interest of the corporate entity, Aspen Acres Incorporated, which had developed the subdivision, including the water system and any development in connection with the water system appurtenant to the real estate. this court stated: |