Family v. Pomeroy , 2021 COA 73 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
May 27, 2021
2021COA73
No. 19CA2016, Amada Family v. Pomeroy — Real Property —
After-acquired Interests — Easements
A division of the court of appeals considers whether Colorado’s
after-acquired interest statute, section 38-30-104, C.R.S. 2020,
abrogates the common law after-acquired interest doctrine, and if it
does not, whether easements may be transferred pursuant to
common law. Based on the plain language and legislative history of
the statute, the division concludes that the after-acquired interest
statute does not abrogate the common law doctrine and easements
are among the property interests that may be conveyed under it.
The division further considers whether, in addition to
conferring a right of access, an easement that arises by necessity
may confer a right to install utility lines. The division determines
that, especially where property is conveyed for residential use, the
need for utilities is foreseeable and an easement by necessity can
include utility rights.
COLORADO COURT OF APPEALS 2021COA73
Court of Appeals No. 19CA2016
Montrose County District Court No. 18CV30063
Honorable Mary E. Deganhart, Judge
Amada Family Limited Partnership,
Plaintiff-Appellee and Cross-Appellant,
v.
Eugene K. Pomeroy and Michelle M. Pomeroy,
Defendants-Appellants and Cross-Appellees.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE RICHMAN
Lipinsky and Pawar, JJ., concur
Announced May 27, 2021
Brian Kidnay, PC, Brian Kidnay, Montrose, Colorado; Timmins LLC, Edward P.
Timmins, Amy K. Hunt, Denver, Colorado, for Plaintiff-Appellee and Cross-
Appellant
Masters Law Firm, P.C., David Masters, Montrose, Colorado, for Defendants-
Appellants and Cross-Appellees
¶1 Defendants, Eugene K. Pomeroy and Michelle M. Pomeroy (the
Pomeroys), appeal a district court’s judgment in favor of plaintiff,
Amada Family Limited Partnership (Amada). Amada cross-appeals
the district court’s determination that it is not entitled to damages
for trespass. We affirm the judgment insofar as the district court
recognized easements in favor of Amada and the Pomeroys and
established their scope and location. We reverse the judgment
insofar as the district court determined that the Pomeroys could not
have trespassed on Amada’s easement and denied Amada damages.
We remand this case for a hearing on Amada’s trespass claim.
I. Background
¶2 Through a series of transactions with Michael and Virginia
McGee (the McGees), Amada purchased two parcels of land near
Montrose, Colorado, referred to as Parcel A and Parcel D. Because
the land to the east of Parcels A and D is impassable, these parcels
lack any feasible means of ingress and egress except across two
parcels now owned by the Pomeroys, referred to as Parcel B and
Parcel C. The four parcels are located as shown below:
1
¶3 Amada asserts that it owns an express access and utility
easement over Parcels B and C in favor of Parcel A and an implied
access and utility easement over Parcels B and C in favor of Parcel
D. When these easements are pieced together, they provide Amada
access to and from Uncompahgre Road, the public road to the west
of the four parcels, and permit it to develop its land for residential
use. The Pomeroys dispute Amada’s easement claims. They
concede only that Amada has an express access and utility
easement over Parcel B (but not over Parcel C) in favor of Parcel A.
To resolve the issues raised, we must examine the history of Parcels
A through D.
2
A. Transactional and Procedural History
¶4 The McGees acquired Parcels A and B in 2003. In connection
with the sale, they received a right-of-way permit (the permit) from
the federal government, which owned Parcels C and D at the time.
The permit, issued by the Bureau of Land Management (BLM),
allowed the McGees to enter and exit their property on an access
road (the access road) that began at Uncompahgre Road, traveled
north through Parcel B to Parcel C, then turned south, reentering
Parcel B near the McGees’ residence.
¶5 In 2006, the McGees decided to sell Parcel A. To facilitate the
sale, they procured an amendment to the permit. The amendment
allowed the owner of Parcel A to create a new “spur” road north of
the existing access road. The spur road was intended to permit the
owner of Parcel A to access that parcel without driving near the
McGees’ residence on Parcel B.
¶6 In September 2007, by warranty deed (the 2007 deed), the
McGees sold Parcel A to Amada. The deed granted Amada an
easement (the 2007 easement) as follows:
Grantor hereby grants to Grantee a 50 foot
non-exclusive easement for ingress, egress and
utilities, extending by the most direct and
3
drivable route to the Property from
Uncompahgre Road. This grant of [a]
non-exclusive easement shall include the
ground currently used and permitted for
access under a permit issued by the Bureau of
Land Management (BLM), if and when Grantor
or its successors shall acquire title to said
ground. It is mutually understood that no
present Grant of [an] easement can be made
across ground not currently owned by Grantor
and that Grantor shall have no duty to provide
alternative access while Grantee has legal
access under said permit from the BLM. . . .
Grantor and/or Grantor’s heirs and/or assigns
shall allow a 50 foot easement for ingress,
egress and utilities to the benefit of the
Grantee or Grantee’s heirs and/or assigns in
the event Grantor acquires property from the
Government that Grantees[’] and Grantors[’]
current road is on that goes between
Uncompahgre Road and Grantees[’] and
Grantors[’] property.
(Emphasis added.) Thereafter, Amada used the existing access
road to access Parcel A as specified in the 2007 deed.
¶7 In December 2012, the federal government conveyed Parcels C
and D to the McGees. Thereafter, when Virginia McGee wanted to
access Parcel D, she generally crossed Parcels B and C on the
access road driving an all-terrain vehicle. Then, she crossed Parcel
A with Amada’s permission, using a trail on Parcel A to drive to
Parcel D.
4
¶8 In June 2014, the McGees sold Parcel D to Amada. According
to Mark Covington, the agent who assisted the parties in
negotiating the sale of Parcel A and Parcel D, the parties understood
that the 2007 easement would extend to Parcel D because the
easement was already being used to access Parcel A and the “title
didn’t show lack of a right-of-access, so we went with that.” The
deed to Parcel D did not mention the 2007 easement, but Covington
testified that the parties expected Amada to use the access road to
get to Parcel D.
¶9 In July 2014, the McGees sold Parcels B and C to the
Pomeroys. After the sale, Amada continued to use the access road
as it had before.
¶ 10 In 2017, Amada built the planned spur road and began using
it to access its parcels. The spur road connects to the access road
on Parcel C and passes through an elk fence on Parcel C that was
installed, without the government’s permission, by a person who
owned Parcels A and B before the McGees owned them. To clarify
the issues surrounding the spur road, we have drawn lines on the
parcel map that roughly illustrate the manner in which the access
5
road (the solid line) and the spur road (the dotted line) intersect
with a portion of the elk fence (the dashed line).
¶ 11 After Amada built the spur road, and without Amada’s
consent, the Pomeroys placed a gate across the spur road where it
runs through a hole Amada made in the elk fence. The Pomeroys
also locked a gate at the entrance to the access road, effectively
denying Amada access to its parcels. They subsequently took the
position that Amada held no easements of any kind. In response,
Amada filed an action for declaratory judgment and trespass.
¶ 12 The Pomeroys counterclaimed seeking, among other things, a
declaratory judgment in their favor as to Amada’s claimed
easements and legal recognition of an easement on Parcel A in favor
of Parcels B and C. The Pomeroys argued that an easement on
6
Parcel A is necessary because it allows them to access a headgate,
located on Parcel A, that is essential to their irrigation system (the
headgate easement).
B. Easements Over Parcels B and C to Parcel A
¶ 13 Before trial, Amada filed a motion for partial summary
judgment. It argued that, under the 2007 deed, it owns an express
access and utility easement over Parcel B in favor of Parcel A. It
further argued that under the after-acquired interest statute, see
§ 38-30-104, C.R.S. 2020, as applied to the 2007 deed, when the
McGees acquired Parcel C in 2012, Amada acquired an express
easement over Parcel C in favor of Parcel A. Finally, Amada
asserted that it owns an implied access and utility easement across
Parcels B and C in favor of Parcel D based on necessity and the
McGees’ prior use of the access road to reach Parcel D.1
¶ 14 In a thorough written order, the district court concluded that
when the McGees sold Parcel A to Amada in 2007, Amada obtained
1 Amada additionally claimed, in the alternative, an implied
easement by pre-existing use over Parcels B and C in favor of Parcel
A. The district court denied this claim and Amada does not appeal
this portion of the judgment. Therefore, we do not address it.
7
an express access and utility easement over Parcel B in favor of
Parcel A. It further concluded that, in 2012, under the common law
after-acquired interest doctrine, Amada obtained an express access
and utility easement over Parcel C in favor of Parcel A. However,
genuine issues of material fact remained with respect to the implied
easement over Parcels B and C in favor of Parcel D, and the court
declined to recognize the easement on summary judgment.
C. Easements Over Parcels B and C to Parcel D
¶ 15 The parties proceeded to a bench trial regarding the existence
of an implied easement in favor of Parcel D. At trial, the court also
considered whether the Pomeroys committed trespass by, among
other conduct, gating the spur road at the elk fence and locking a
gate at the entrance to the access road. In addition, the parties
asked the court to define the scope and location of any easements
recognized or established.
¶ 16 In a written order, the district court concluded that Amada
holds an implied access easement over Parcels B and C in favor of
Parcel D based on the McGees’ prior use, and an implied easement
by necessity, for access and utilities, over Parcels B and C in favor
8
of Parcel D. The court also prohibited the Pomeroys from gating the
spur road at the elk fence and it denied Amada’s trespass claim.
D. Easement Over Parcel A from Parcels B and C
¶ 17 In addition, the district court considered the Pomeroys’ claim
to the headgate easement. Amada conceded the existence of the
easement but expressed concern about its location and width. The
court’s trial order recognized an eight-foot-wide easement over
Parcel A in favor of Parcels B and C.
¶ 18 After trial, the Pomeroys filed a C.R.C.P. 59 motion to amend
the judgment, asking the district court to make the headgate
easement wider and to allow a gate on the spur road at the elk
fence. The court denied the motion.
E. Issues Appealed
¶ 19 On appeal, the Pomeroys contend that the district court erred
by (1) granting an express easement over Parcel C in favor of Parcel
A; (2) granting an implied easement over Parcels B and C in favor of
Parcel D; (3) requiring removal of the gate on the spur road; and (4)
denying their Rule 59 motion to widen the headgate easement. On
cross-appeal, Amada contends that the court erred by declining to
award damages for trespass. We address each contention in turn.
9
II. The Court Properly Recognized an Easement Over Parcel C in
Favor of Parcel A
¶ 20 As noted above, the express easement over Parcel C in favor of
Parcel A was recognized on summary judgment. We review de novo
a district court’s grant of summary judgment. Wallman v. Kelley,
976 P.2d 330, 331 (Colo. App. 1998). To prevail on such a motion,
the moving party must demonstrate that there are no genuine
issues of material fact and the movant is entitled judgment as a
matter of law. Id. at 332.
¶ 21 There are no genuine issues of material fact regarding Amada’s
claim to an express easement over Parcel C in favor of Parcel A
because the existence of the easement hinges on the 2007 deed’s
granting language and the McGees’ undisputed purchase of Parcel
C in 2012. Premier Bank v. Bd. of Cnty. Comm’rs, 214 P.3d 574,
577-78 (Colo. App. 2009) (stating that interpretation of a deed is a
question of law and the granting clause controls the nature of the
interest conveyed).
¶ 22 However, the parties disagree as to what law applies. The
district court relied exclusively on the common law after-acquired
interest doctrine. The Pomeroys contend that the court erred in
10
this regard, urging that the after-acquired interest statute
abrogated the common law doctrine. They further argue that, even
if the common law doctrine survived enactment of the statute, it
does not support Amada’s claim.
A. The Statute Did Not Abrogate the Common Law
¶ 23 The parties have cited no case, and we have found none, in
which a Colorado court expressly decided whether Colorado’s
after-acquired interest statute abrogates the common law doctrine.2
To the extent that Colorado courts have addressed this issue, they
have noted that the statute is a codification of the common law
doctrine, which is generally stated as follows: “Where one conveys
lands with warranty, but without title, and afterwards acquires one,
his first deed works an estoppel, and passes an estate to the
grantee the instant the grantor acquires his title.” Phillippi v. Leet,
19 Colo. 246, 251-52, 35 P. 540, 541 (1893) (quoting 3 Emory
2 This common law principle is also sometimes referred to as
“estoppel by deed.” Shaw v. Profitt, 110 P. 1092, 1095-96
(Or. 1910). For ease of reference, and to ensure linguistic
consistency with existing case law, we will use the term
“after-acquired interest” doctrine. See Premier Bank v. Bd. of Cnty.
Comm’rs, 214 P.3d 574, 576 (Colo. App. 2009) (referring to the
“after-acquired interest statute”).
11
Washburn, Washburn on Real Property 118 (4th ed. 1876)); see also
Premier Bank, 214 P.3d at 579. This doctrine serves to bind the
grantor to the terms of the purported conveyance, including any
warranties made, under principles of estoppel. Premier Bank, 214
P.3d at 579; Shaw v. Profitt, 110 P. 1092, 1092 (Or. 1910) (noting
that this doctrine is grounded in equity, which will grant relief by
estoppel when there is intentional or unintentional fraud).
¶ 24 Thus, Colorado’s after-acquired interest statute states that
[i]f any person sells and conveys to another by
deed or conveyance, purporting to convey an
estate in fee simple absolute, any tract of land
or real estate lying and being in this state, not
being possessed of the legal estate or interest
therein at the time of the sale and conveyance
and, after such sale and conveyance, the
vendor becomes possessed of and confirmed in
the legal estate of the land or real estate so
sold and conveyed, it shall be taken and held
to be in trust and for the use of the grantee or
vendee, and said conveyance shall be held and
taken, and shall be as valid as if the grantor or
vendor had the legal estate or interest at the
time of said sale or conveyance.
§ 38-30-104.
¶ 25 One notable difference between the statute and the common
law doctrine is that the doctrine applies “[w]here one conveys lands
with warranty, but without title,” Phillippi, 19 Colo. at 251-52, 35 P.
12at 541 (emphasis added) (quoting Washburn at 118), while the
statute applies where one purports to convey “an estate in fee
simple absolute,” § 38-30-104 (emphasis added).
¶ 26 According to the Pomeroys, this difference in wording indicates
that a grantee is entitled to an after-acquired interest only if the
grantor originally conveyed the subject property in fee simple
absolute. They further argue that an easement is not an estate in
“land or real estate” that may be conveyed in fee. § 38-30-104.
Rather, it is a “nonpossessory property right to enter and use land
in the possession of another.” Matoush v. Lovingood, 177 P.3d
1262, 1265 (Colo. 2008) (citation omitted). Therefore, the argument
goes, easements cannot be conveyed in fee under the statute and
they cannot be conveyed as after-acquired property interests under
the common law, which has been abrogated.3 For three reasons, we
are not persuaded.
3 We need not decide whether the after-acquired interest statute
applies to easements incorporated in a fee simple deed. The district
court relied on the common law doctrine, and the parties made
arguments about its continued viability. Therefore, the common
law issue is squarely before us.
13
¶ 27 First, when interpreting a statute, our primary goal is to give
effect to the legislative intent. Premier Bank, 214 P.3d at 577. We
therefore read statutory words or phrases according to their plain
meanings, being careful not to construe them in a manner that
unjustifiably enlarges or diminishes their import. Robbins v.
People, 107 P.3d 384, 387-88 (Colo. 2005). This rule informs a
related principle: “[A] statute may not be construed to abrogate the
common law unless such abrogation was clearly the intent of the
[G]eneral [A]ssembly.” Id. To abrogate the common law, a statute
must expressly state the intention to do so or must do so by
necessary implication. City of Colorado Springs v. White, 967 P.2d
1042, 1055 (Colo. 1988).
¶ 28 Our review of the plain language of the statute reveals that it
expressly provides a statutory remedy only for parties who have
received a defective conveyance in fee simple absolute. However, it
is silent regarding any intent to abrogate the common law. The
statute’s express provision of a remedy to cure defects in fee simple
estates does not preclude the survival of common law remedies. Id.(“A statute is merely cumulative of the common law if the legislature
intended not to interfere with preexisting rights, but to give
14
additional relief.”); see also 31 C.J.S. Estoppel § 26 (2021) (noting
that a statute providing for transfer of after-acquired title in fee
simple absolute “does not limit the application of the rule estopping
a grantor to assert an after-acquired title to grants falling within the
provisions of the statute, and, notwithstanding the statute, such an
estoppel may arise from covenants of warranty contained in other
grants.”) (footnote omitted). In our view, the General Assembly has
expressed no clear intent to abrogate the common law.
¶ 29 Second, the legislative history of section 38-30-104 indicates
that it was enacted to clarify an ongoing debate over which
warranties are impliedly included in particular kinds of deeds.
Colorado first enacted the after-acquired interest statute as a
territorial ordinance in 1861. See Premier Bank, 214 P.3d at 576.
It has not been amended since that time. In 1868, when the
ordinance was first included in a compilation of Colorado statutes,
it appeared with a footnote referencing Illinois law. See R.S. 1868,
Ch. 17, § 4. As is the case with many of our statutes, it appears
that Colorado’s after-acquired interest statute was patterned after a
statute enacted earlier in Illinois. When Colorado adopts a statute
from another state and, at the time of enactment, it has been
15
construed by an appellate court of that state, we may presume our
legislature intended the statute to be construed in a similar
manner. Peters v. Smuggler-Durant Mining Corp., 930 P.2d 575, 578
(Colo. 1997); Brown v. Davis, 103 Colo. 110, 114, 83 P.2d 326, 328
(1938).
¶ 30 In Frink v. Darst, 14 Ill. 304, 309-10 (1853), the Supreme
Court of Illinois explained the rationale behind the Illinois statute’s
exclusive application to estates in fee simple absolute. According to
the court, the “fee simple absolute” language was included to
distinguish the legal effect of deeds conveying fee simple title, which
indefeasibly vest the entire estate in the grantee, from the legal
effect of quitclaim deeds, which convey only the grantor’s current
interest and necessarily exclude transfer of subsequently acquired
interests. Id.; see Tuttle v. Burrows, 852 P.2d 1314, 1316 (Colo.
App. 1992) (holding that a quitclaim deed does not convey property
rights that vest after conveyance).
¶ 31 Quoting language from a Missouri case interpreting a
“precisely similar” statute, the Illinois court explained,
our statute was intended to settle a question
which had been much discussed, and about
which there was certainly great conflict of
16
opinion; whether a general warranty would
operate to transfer a subsequently acquired
legal title. It undoubtedly settles this question
in the affirmative, and, I think, it goes
further. . . . It does not limit its operation to
deeds containing covenants of general
warranty, but it extends to every deed which
purports to convey a fee simple absolute,
whether it contains a general warranty or not.4
Frink, 14 Ill. at 309-10 (quoting Bogy v. Shoab, 13 Mo. 365, 381
(1850)).
¶ 32 Thus, when Colorado’s legislative body first adopted this
statute, it did so with an understanding that the “fee simple
absolute” language was meant to remove lingering uncertainty
regarding whether a deed conveying an estate in fee simple absolute
impliedly warranted that the estate was indefeasibly vested, even
against grantors claiming after-acquired interests. Conversely, this
same wording was intended to clarify that quitclaim deeds contain
no implied warranties and do not convey after-acquired interests
unless express warranties are made.
4 A general warranty is “[a] warranty against the claims of all
persons.” Black’s Law Dictionary (11th ed. 2019). Thus, it includes
the grantor.
17
¶ 33 Given this history, we do not construe the statute as a
limitation on common law remedies but as an answer to
uncertainties surrounding the necessity of express warranties. See
Robben v. Obering, 279 F.2d 381, 384 (7th Cir. 1960) (concluding
that the Illinois statute did not abrogate the common law but was
intended to remove “uncertainty which may have existed as to
whether an express warranty was required to invoke the doctrine of
after-acquired title”). In fact, after passage of the statute, Illinois
courts continued to enforce the common law doctrine that deeds
expressly warranting title, whether they grant fee simple estates or
not, are effective to transfer after-acquired interests. Bennett v.
Waller, 23 Ill. 97 (1859) (noting that, although the statute did not
apply to a particular deed, after-acquired title passed under an
express covenant in the deed); Phelps v. Kellogg, 15 Ill. 131, 137
(1853) (concluding that, under equitable principles, and due to an
express covenant, an after-acquired property interest was
transferred by quitclaim deed); see also Aure v. Mackoff, 93 N.W.2d
807, 812 (N.D. 1958) (noting that common law “estoppel by deed”
principles were applicable to a quitclaim deed that warranted title
18
because the doctrine “is not limited to cases falling within our
statutory provisions”).
¶ 34 Third, several Colorado cases impliedly acknowledge the
continued viability of the common law doctrine. See Phillippi, 19
Colo. at 252, 35 P. at 541-42 (recognizing an exception to the
statute based on common law); Colo. Trout Fisheries v. Welfenberg,
84 Colo. 592, 594, 273 P. 17, 18 (1928) (noting that the
after-acquired interest statute is “merely a legislative codification of
the general rule and in harmony with the same”) (emphasis added);
Bessemer Irrigating Ditch Co. v. Woolley, 32 Colo. 437, 445-46, 76 P.
1053, 1055 (Colo. 1904) (discussing whether a habendum clause
purporting to confirm in the grantee any estate specifically granted
“which the grantor might thereafter acquire” can transfer
after-acquired property apart from statutory protections).
¶ 35 For these reasons, we conclude that section 38-30-104 does
not abrogate the common law.
B. The Claimed Easement Was Transferred Under the Common
Law Doctrine
¶ 36 Having determined that the common law doctrine remains
viable, we must now consider a second question: whether the
19
easement claimed by Amada is subject to post-conveyance transfer
under common law.
¶ 37 As noted above, among other possible methods, transfer of
after-acquired property may occur under an implied warranty (as
provided in the statute, for example). It may also be effected
through an express covenant in a contract or instrument of
conveyance. Lobato v. Taylor, 71 P.3d 938, 950 (Colo. 2002);
Phelps, 15 Ill. at 137; Bennett, 23 Ill. at 97. In this case, we need
not concern ourselves with implied warranties because the 2007
deed expressly promises the transfer of an after-acquired easement
over Parcel C. Therefore, we need only determine the enforceability
of the express covenant.
¶ 38 As we explained, supra Part II.A n.2, the after-acquired
interest doctrine rests on principles of estoppel and is sometimes
called “estoppel by deed.” The doctrine “prevents a party to a deed
from denying anything recited in that deed if the party has induced
another to accept or act under the deed.” Estoppel By Deed, Black’s
Law Dictionary (11th ed. 2019). It serves to prevent fraud and
honors the parties’ intentions by defining their obligations
according to the terms of the challenged instrument. See Int’l Tr.
20
Co. v. Palisade Light, Heat & Power Co., 60 Colo. 397, 401-02, 153
P. 1002, 1003 (1916); Gyra v. Windler, 40 Colo. 366, 369-70, 91 P.
36, 37 (1907); Shaw, 110 P. at 1094. The doctrine may be used to
enforce any covenant in a deed that sets forth the parties’
obligations. Int’l Tr., 60 Colo. at 401-02, 153 P. at 1003.
¶ 39 As the district court noted, courts in other states have
concluded that easements may be transferred as after-acquired
property under principles of estoppel or estoppel by deed. Noronha
v. Stewart, 245 Cal. Rptr. 94, 96 (Ct. App. 1988) (noting that a
grantor that purports to convey any property interest, including oral
easements, is estopped to deny its transfer); Arnold Indus., Inc. v.
Love, 63 P.3d 721, 726-27 (Utah 2002) (“To allow a grantor to deny
the terms of its conveyance after acquiring title by repudiating an
easement originally intended to be granted would be an invitation to
fraud and would contravene the central purpose of the equitable
doctrine of estoppel by deed.”); see also Sprinkle v. Am. Mobilephone
Paging, Inc., 525 So. 2d 1353, 1356-57 (Ala. 1988) (concluding that
the defendant grantor was bound to his grant of an easement under
the after-acquired interest doctrine because this result honored the
intent of the parties); Spencer v. Wiegert, 117 So. 2d 221, 226 (Fla.
21
Dist. Ct. App. 1959) (“Easements constitute property within the rule
of estoppel as to after-acquired property.”).
¶ 40 Nevertheless, the Pomeroys insist that Noronha and Arnold, on
which the district court relied, do not support Amada’s claim
because these cases state (or imply) that, to proceed under a theory
of estoppel, a grantee must have reasonably relied on a grantor’s
representation that he or she owned the after-acquired property.5
5 Amada contends that we should not consider this issue because
the Pomeroys did not preserve it. We disagree. The Pomeroys had
no opportunity to raise the issue because Amada did not make
arguments based on the common law doctrine until it replied to the
Pomeroys’ response to its motion for summary judgment. Although
we normally do not consider unpreserved issues in civil cases,
Grant Bros. Ranch, LLC v. Antero Res. Piceance Corp., 2016 COA
178, ¶ 11, here, we elect to do so. The district court’s ruling was
based on common law. Although the Pomeroys did not make these
arguments below, the court had an opportunity to rule on the
applicability of the common law doctrine. Id. Further, principles of
judicial economy and fairness weigh in favor of granting review.
Flagstaff Enter. Constr., Inc. v. Snow, 908 P.2d 1183, 1185 (Colo.
App. 1995) (noting the unfairness of making a new argument in a
reply brief in the district court); Farmer v. Colo. Parks & Wildlife
Comm’n, 2016 COA 120, ¶ 19 (stating that court has discretion to
review unpreserved issues of law where they have been fully
briefed); see also Rinker v. Colina-Lee, 2019 COA 45, ¶¶ 24-26
(holding that, where a trial court rules on an issue without giving all
parties an opportunity to be heard, the merits of the ruling are
subject to appellate review even in the absence of a timely
objection).
22
Logically, a grantee cannot rely on this representation when the
grantee had notice that, at the time of the conveyance, the grantor’s
title was defective or nonexistent. Noronha, 245 Cal. Rptr. at 97
(noting that estoppel does not apply in favor of a grantee who has
notice that the grantor does not own the property conveyed); Arnold,
63 P.3d at 726-27 (considering whether a grantee’s reliance was
reasonable when the defective grant was a matter of public record).
¶ 41 It is true that a party generally has no right to invoke
principles of estoppel unless that party reasonably relied on the
grantor’s representation. See Lobato, 71 P.3d at 950-51 (stating
that an easement may be created by estoppel where the claimant
substantially changed position in reliance on the conduct of the
grantor); Alexander v. McClellan, 56 P.3d 102, 106 (Colo. App. 2002)
(“Estoppel requires that a person, by words, by conduct, or by
silence when he or she has a duty to speak, induce another to
change position detrimentally in reasonable reliance on his or her
actions.” (quoting Cont’l W. Ins. Co. v. Jim’s Hardwood Floor Co., 12
P.3d 824, 828 (Colo. App. 2008))). Nonetheless, a covenant “will
always work an estoppel to the extent of its terms,” Washburn at
110, so reliance should be evaluated according to the terms of the
23
covenant at issue. See also Premier Bank, 214 P.3d at 579 (noting
that the after-acquired interest statute, which is in harmony with
the common law, binds grantor to the terms of the conveyance).
¶ 42 The terms of the covenant in 2007 deed were that, although
the McGees didn’t own Parcel C at the time, the easement would
include the land currently permitted for access if the McGees
acquired that land. The covenant also compelled the grantors and
their assigns to “allow a 50 foot easement for ingress, egress and
utilities to the benefit of the Grantee . . . in the event Grantor
acquires property [incorporating the current access road] from the
Government.” Based on that understanding, Amada acquired
Parcel A, from which no feasible means of access exists without the
easement over Parcel C. It therefore reasonably relied on the
McGees’ promise to allow an easement over Parcel C if they could
acquire it.6 The district court did not err by recognizing the claimed
easement.
6Similar covenants promising transfer of after-acquired interests
have been given effect in Illinois. E.g., Bennett v. Waller, 23 Ill. 97,
97 (1859) (upholding a covenant in a quitclaim deed promising
“with all convenient speed” to obtain a patent for the premises and
execute additional deeds if necessary to ensure transfer of perfect
24
III. The Court Properly Recognized an Access and Utility Easement
Over Parcels B and C in favor of Parcel D
¶ 43 The Pomeroys next challenge the district court’s recognition of
an implied access and utility easement over Parcels B and C in
favor of Parcel D. They contend that the evidence did not support
the court’s conclusion that the McGees’ prior use of the access road
to enter Parcel D created an implied easement. They further
contend that any implied easement arising by necessity did not
include utility rights.
¶ 44 To the extent the Pomeroys base their arguments on factual
disputes, we review for clear error. Campbell v. Summit Plaza
Assocs., 192 P.3d 465, 469 (Colo. App. 2008). However, we review
any legal issues de novo. Id.A. The Elements of an Easement by Prior Use Were Met
1. Law
¶ 45 When not expressly conveyed, easements may arise by
implication. Lobato, 71 P.3d at 950. Colorado law recognizes
title); Phelps v. Kellogg, 15 Ill. 131, 137 (1853) (where a grantor had
only a right of preemption at the time of conveyance, but the deed
included a promise to transfer further title if it was acquired, the
court enforced the covenant to transfer after-acquired title).
25
implied easements based on a strong public policy in favor of
honoring the intentions of parties and avoiding unjust results and
against rendering land useless due to a lack of access. Id.;
Thompson v. Whinnery, 895 P.2d 537, 540 (Colo. 1995). To that
end, when a party conveys property, there is a presumption that the
party has conveyed whatever is necessary to provide for its
beneficial use. Thompson, 895 P.2d at 540; see also Collins v.
Ketter, 719 P.2d 731, 733 (Colo. App. 1986).
¶ 46 An easement by prior use is a type of implied easement. To
establish an easement by prior use, a party must show that
1) the servient and dominant estates were once
under common ownership, 2) the rights alleged
were exercised prior to the severance of the
estate, 3) the use was not merely temporary, 4)
the continuation of this use was reasonably
necessary to the enjoyment of the parcel, and
5) a contrary intention is neither expressed nor
implied.
Lobato, 71 P.3d at 951 (citing Restatement (Third) of Prop.:
Servitudes § 1.2(2) (Am. L. Inst. 1998)).
¶ 47 The “common ownership” requirement serves to protect the
ownership rights of grantors by requiring all owners of an estate to
impliedly or expressly consent to the burden of an easement before
26
it can arise. Campbell, 192 P.3d at 472 (noting that “ownership and
its attendant rights are what is important, not [arbitrary lot]
divisions or identifiers”); Restatement (Third) of Prop.: Servitudes
§ 2.3 (Am. L. Inst. 2000); cf. Yellowstone River, LLC v. Meriwether
Land Fund I, LLC, 264 P.3d 1065, 1079 (Mont. 2011) (stating that
an implied easement may arise only “at the time of severance,
because the common owner may grant or reserve an easement only
over her own property” not over neighboring or intervening
property).
¶ 48 Similarly, the requirement that the “use was not merely
temporary” is intended to honor the owner’s intent at the time of
severance. Thus, to create an easement by prior use, the owner
must use the premises “in [an] altered condition” long enough prior
to severance to demonstrate that the owner intended the change to
be permanent. Lee v. Sch. Dist. No. R-1, 164 Colo. 326, 331, 425
P.2d 232, 236 (1967).
2. Analysis
¶ 49 The Pomeroys assert that, because the McGees conveyed
Parcel A to Amada before the McGees acquired Parcels C and D, the
relevant parcels were not under common ownership prior to
27
severance and no easement as to Parcel D was created. They insist
that to prove common ownership, Amada was required to show the
McGees owned all the parcels simultaneously and that all their land
was contiguous.
¶ 50 We are not persuaded. This argument misconstrues the scope
of Amada’s claim. Amada’s claim is that it holds an easement
appurtenant to the dominant estate, Parcel D, over Parcels B and C,
which are the relevant servient estates. Lazy Dog Ranch v. Telluray
Ranch Corp., 965 P.2d 1229, 1234 (Colo. 1998) (Lazy Dog II) (noting
that servient estates are those burdened by an easement while
dominant estates are those benefitted). Parcel A is not one of the
servient estates that must have been under common ownership for
an easement to have been created. Put differently, the parties’
intent with respect to Parcel A, which was already owned by Amada
at the time of severance, is not relevant to whether, at the time the
ownership of Parcel D was severed from Parcels B and C, the
McGees intended to permit Amada to enter Parcel D via the access
or spur roads on Parcels B and C.
¶ 51 Nor is the McGees’ prior use of Parcel A relevant simply
because it is situated between the parcels the McGees retained at
28
the time of conveyance. Colorado follows the modern rule that an
easement may be appurtenant to land even when the servient
estates are not adjacent to the dominant estate. Wagner v.
Fairlamb, 151 Colo. 481, 487, 379 P.2d 165, 169 (1963). This rule
applies to implied as well as express easements. Id.; Ass’n of
Apartment Owners of Wailea Elua v. Wailea Resort Co., Ltd., 58 P.3d
608, 617 n.7 (Haw. 2002) (noting that severance of noncontiguous
properties is not fatal to recognition of an implied easement).
¶ 52 The Pomeroys further argue that the McGees’ prior use of
roads on Parcels B and C to access Parcel D did not endure long
enough and was not apparent enough to demonstrate an intent that
their use be permanent. They point to the fact that the McGees
only owned Parcels B, C, and D for about eighteen months and no
paved road or trail was ever constructed over Parcel A to allow the
McGees to access Parcel D. Again, we are not persuaded.
¶ 53 In Proper v. Greager, 827 P.2d 591, 593 (Colo. App. 1992), for
two years prior to severance of the subject properties, the common
owner drove across a parking lot on the servient estate to reach a
mobile home and shed on the dominant estate. A division of this
court concluded that the owner’s prior use demonstrated his use of
29
the premises in an altered condition long enough to create an
implied easement. Id.¶ 54 The facts in this case are like those in Proper. The McGees
owned the subject parcels for eighteen months, a similar length of
time. Further, Mrs. McGee testified that to get to Parcel D, she
routinely took the access road over Parcels B and C (which she then
owned) to Parcel A, where (with Amada’s permission) she would ride
her all-terrain vehicle over a trail on Parcel A to Parcel D. Thus, as
in Proper, she used an existing road or thoroughfare on the servient
estates to access her other parcel, fulfilling the requirement that the
road is used in an “altered condition” by the prior owner.
¶ 55 It is of no moment that only a rough “trail” over Parcel A
existed at the time Mrs. McGee used it. Any trail on Parcel A is only
relevant insofar as it completes the narrative regarding the manner
in which the McGees got to Parcel D. It shows, with specificity,
where Mrs. McGee drove her all-terrain vehicle to get to her
noncontiguous parcel. The Pomeroys have cited no case, and we
have not found one, requiring that a road necessary to the common
owner’s prior use must be paved to make the use sufficiently
apparent. This is especially so where, as here, the intent of the
30
parties at the time of conveyance is clear because Mrs. McGee and
Covington testified that they expected Amada to access Parcel D in
the same way the McGees had. The trial evidence supports the
conclusion that the owners’ prior use was apparent.
¶ 56 For these reasons, we conclude that the district court did not
err by recognizing Amada’s implied access easement over Parcels B
and C in favor of Parcel D.7
B. An Access and Utility Easement Arose By Necessity
¶ 57 The Pomeroys’ challenge to Amada’s claim to an easement by
necessity is narrow. In their briefs, they do not appear to argue
that no easement by necessity exists over Parcels B and C in favor
of Parcel D. They argue only that an easement created by necessity
cannot include the right to run utilities to the dominant parcel. On
this basis, they argue that the trial court erred by awarding a utility
easement to Amada in favor of Parcel D. Insofar as this contention
raises a purely legal issue, our review is de novo. Campbell, 192
7The court did not grant a utility easement based on prior use
because the McGees did not install utilities when they owned Parcel
D.
31
P.3d at 469. To the extent the Pomeroys raise an implicit challenge
to the court’s evidentiary findings, we review for clear error. Id.
1. Law
¶ 58 An easement by necessity arises when the owner of a parcel of
land grants part of the land to another party, leaving either the part
granted or the part retained without access except through the
other part. Id. In that circumstance, as with an easement by prior
use, a presumption arises that the grantor has conveyed or retained
whatever is necessary to provide for the beneficial use of both
properties. Martino v. Fleenor, 148 Colo. 136, 140, 365 P.2d 247,
249 (1961). If this presumption is not contradicted by the terms of
the deed and the facts of a particular case, an easement by
necessity will arise. Id.¶ 59 The scope of an easement by necessity depends on the
purpose for which the parcel was conveyed. Thompson, 895 P.2d at
541. A parcel’s purpose includes uses that would be reasonably
expected based on “normal development” of the parcel. Id. “[T]he
law assumes that no person intends to render property conveyed
inaccessible for the purpose for which it was granted.” Wagner, 151
Colo. at 487, 279 P.2d at 169. Therefore, the permissible uses of an
32
easement by necessity vary according to what rights are necessary
to enable a grantee to use the land as intended and reasonably
expected. Id.; Thompson, 895 P.2d at 541.
¶ 60 Although Colorado has not explicitly done so, several courts in
other states have concluded that an easement by necessity may
include utilities. Jon W. Bruce & James W. Ely, Jr., The Law of
Easements and Licenses in Land § 8.7 n.5, Westlaw (database
updated Nov. 2020) (collecting cases). Support for this view is
especially strong where a parcel is already in residential use or a
parcel was conveyed for residential purposes, making the necessity
of utility rights reasonable and foreseeable. Reece v. Smith, 594
S.E.2d 654, 658 (Ga. Ct. App. 2004) (granting an implied utility
easement where “[t]he utilities were necessary to the reasonable
enjoyment of the land as a place of residence”); Brown v. Miller, 95
P.3d 57, 61 (Idaho 2004) (upholding a trial court’s ruling that “it is
only logical [that] an easement by necessity also includes utilities”);
Smith v. Heissinger, 745 N.E.2d 666, 671-72 (Ill. App. Ct. 2001)
(concluding that easements by necessity are not limited to ingress
and egress but may include utilities); Stroda v. Joice Holdings, 207
P.3d 223, 230 (Kan. 2009) (recognizing that an easement by
33
necessity included a right to utilities because the reasonable use of
residential property required utility services); Morrell v. Rice, 622
A.2d 1156, 1160 (Me. 1993) (“An easement created by necessity can
include not only the right of entry and egress, but also the right to
make use of the easement for installation of utilities . . . .”). We find
these cases, and the notion that foreseeable residential use
reasonably includes utilities, to be persuasive. But see Vertex
Holdings, LLC v. Cranke, 217 P.3d 120, 124 (Okla. Civ. App. 2008)
(denying an easement by necessity for utilities because, at the time
of severance, there was no necessity for a sewer line and nothing
about the severance altered the positions of the parties).
2. Analysis
¶ 61 At trial, both Amada’s trustee, Gary Gustafson, and Covington
testified concerning the purpose for which Parcels A and D were
sold. Based upon this testimony, the trial court found “it was not a
secret that [Amada] intended to utilize Parcel D for residential
purposes.” There is record support for this finding.
¶ 62 Covington testified that the 2014 conveyance of Parcel D was
really a “continuation” of the deal between the McGees and Amada
in 2007. The parties assumed that access and utility rights would
34
be the same for both parcels. He further testified that, at the time
of conveyance, Parcel D had no restrictions on its use and putting a
residence on Parcel D would have been part of “normal
development” of the parcel.
¶ 63 Gustafson testified that when he decided to purchase Parcel A
via the trust, he did so because he wanted to move to Montrose and
buy land for investment. He further stated that he planned to
divide Parcel A and install a road or utilities, an intention reflected
in the deed to Parcel A, which provides parameters for dividing the
parcels into residential lots. Gustafson also testified that he and
Mr. McGee talked about their plans to split their parcels into
smaller home sites. According to Gustafson, when Amada
purchased Parcel D, he hoped to use that parcel as an investment
property as well.
¶ 64 Negotiations for the Pomeroys’ purchase of the other parcels
were proceeding simultaneously with Amada’s negotiations for
Parcel D and the Pomeroys expressed an interest in purchasing a
portion of the northwest corner of Parcel D. Based on the
Pomeroys’ interest in reducing the size of Parcel D, Gustafson asked
that additional land be added to it to ensure that Parcel D would
35
include at least thirty-six acres. He insisted on this number
because he wanted Parcel D to have enough acreage to comply with
state and county rules setting minimum acreage standards for
selling a parcel. He also contemplated putting his own residence on
Parcel D, building an access road on Parcel A to Parcel D, and
running utilities for both parcels under that road. It was his
understanding that because the 2007 easement to Parcel A
included utilities, any access easement to Parcel D would include
utilities as well.
¶ 65 We conclude that because the scope of an easement by
necessity is set according to the purpose of the conveyance, and the
trial court found, with evidentiary support, that Parcel D was
conveyed for residential purposes, the court did not err by
recognizing that Amada’s easement on Parcels B and C in favor of
Parcel D includes utility rights.8
8The district court’s order stated that “there was no evidence that
allowing the existing easement for utilities to also benefit Parcel D
would in any way further burden Parcels B and C.” Therefore,
utility rights are not precluded by a concern with overburdening
Parcels B and C.
36
IV. The Court Did Not Err by Requiring Removal of the Gate
¶ 66 The Pomeroys next contend that the district court erred by
concluding that the gate on the spur road at the elk fence must be
removed because it is an unreasonable interference with Amada’s
easement. Whether gates or other impediments unreasonably
interfere with the rights of an easement holder is a question of fact.
Lazy Dog Ranch v. Telluray Ranch Corp., 923 P.2d 313, 317 (Colo.
App. 1996) (Lazy Dog I). We will not disturb the district court’s
findings unless they are not supported by the evidence. Id.A. Law
¶ 67 Where, as here, an easement is not exclusive, both the owner
of the dominant estate and the owner of the servient estate have a
right to use the property. Therefore, the parties’ interests must be
balanced. Lazy Dog II, 965 P.2d at 1238. The owner of the servient
estate has a “qualified right to put his or her property to any lawful
use for which it may be adapted” but “cannot unreasonably
interfere with the superior right of the person possessing the
easement.” Lazy Dog I, 923 P.2d at 316. By contrast, the owner of
the dominant estate may use the easement in any manner
“reasonably necessary to permit [its] full use,” but cannot
37
unreasonably interfere with the enjoyment of the servient estate.
Id.; Lazy Dog II, 965 P.2d at 1238.
¶ 68 When a grant is silent regarding whether an easement may be
gated, and the owner of a servient estate insists on gating the
easement, his conduct may unreasonably interfere with the rights
of the easement holder. Lazy Dog I, 923 P.2d at 316; see also
Schold v. Sawyer, 944 P.2d 683, 685 (Colo. App. 1997).
Circumstances relevant to the reasonableness of his conduct
include, among other factors, “(1) the purpose for which the grant
was made; (2) the intention of the parties given the circumstances
surrounding the grant; (3) the nature and situation of the property;
[and] (4) the manner in which the easement was used.” Lazy Dog I,
923 P.2d at 317.
B. Analysis
¶ 69 The Pomeroys contend that the district court’s finding was
erroneous because the court improperly balanced the interests of
the parties. They argue that the court gave insufficient weight to
the fact that they erected a three-strand fence along the
north/south border between Parcel C and Parcel A that connects
with the elk fence, creating an enclosed horse pasture on Parcel C.
38
According to the Pomeroys, removal of the gate at the elk fence
would render this space unusable as a horse pasture, denying them
the full enjoyment of their estate. In addition, they assert that the
court gave too much weight to Amada’s future development plans
because these plans are still speculative.
¶ 70 The Pomeroys did not raise potential destruction of the horse
pasture during trial, focusing instead on the damage elk might
cause should they enter through the opening in the fence. Because
they raised the horse pasture issue for the first time in their Rule
59 motion, and the argument was based on evidence not presented
at trial, the district court declined to consider it. The Pomeroys
therefore failed to preserve this issue for review. Grant Bros. Ranch,
LLC v. Antero Res. Piceance Corp., 2016 COA 178, ¶ 11.
¶ 71 Moreover, we do not consider whether the district court gave
too much weight to Amada’s residential development plans, given
that these plans remained speculative, or failed to give enough
weight to the Pomeroys’ need for a continuous elk fence. Our
review is confined to determining whether the district court’s
findings are supported by the evidence. Lazy Dog I, 923 P.2d at
317. The court’s order shows that it considered the factors listed in
39
Lazy Dog I: the purpose of the grant, the intentions of the parties,
the “nature and situation” of the land, and the manner in which the
easement was used. Id. It found that the expected placement of
the spur road “necessitated that it pass through the elk fence,” the
grant’s purpose was to facilitate residential use, and prior to the
Pomeroys’ ownership, there were no gates or impediments to
access. It further noted that even when the elk fence is gated, the
Pomeroys lack a complete perimeter fence because they have
chosen to allow a large break in the fence where it intersects with
their driveway. The record contains support for each of these
findings. Accordingly, we will not disturb them on appeal. Id.V. We Decline to Address the Width of the Headgate Easement
¶ 72 The Pomeroys further argue that the district court abused its
discretion by denying their Rule 59 motion to amend the judgment
to widen the headgate easement. We decline to review this issue
because it was not properly appealed.
¶ 73 Under C.A.R. 4(a), to preserve the right to appeal, a party in a
civil case must file a notice of appeal within forty-nine days of the
date the judgment is entered (although the running of the time to
appeal is terminated by the filing of a Rule 59 motion). Failure to
40
file a timely notice of appeal deprives this court of jurisdiction,
precluding review on the merits. In re Estate of Anderson, 727 P.2d
867, 869 (Colo. App. 1986).
¶ 74 In this case, the district court rendered judgment on
September 16, 2019. The Pomeroys filed their Rule 59 motion on
September 30. They then filed a notice of appeal on November 4,
2019, forty-nine days after the district court rendered judgment.9
At that time, the trial court had not ruled on their Rule 59 motion,
and it did not do so until November 25, 2019. The Pomeroys were
therefore unable to appeal the denial of their Rule 59 motion when
they filed their initial notice of appeal. Moreover, they did not
amend the notice of appeal after the district court denied their Rule
59 motion. The time for supplementing or amending the initial
notice of appeal has now expired.
¶ 75 Under these circumstances, the district court’s ruling on the
Rule 59 motion was not properly appealed and we have no
jurisdiction to consider it. Id. at 870 (holding that this court lacked
9 The Pomeroys’ Rule 59 motion terminated the running of the time
for filing a notice of appeal. C.A.R. (4)(a). Therefore, the notice of
appeal was prematurely filed.
41
jurisdiction to review a postjudgment order where the order was not
initially appealed and the notice of appeal was never supplemented).
VI. The Court Improperly Denied Damages for Trespass
¶ 76 On cross-appeal, Amada contends that the district court erred
by declining to award economic damages to remedy the Pomeroys’
alleged trespass. We agree.
¶ 77 Although the import of the court’s order is somewhat unclear,
it appears the court determined that, with one exception not
applicable here, a servient owner cannot “trespass” on an easement
by placing impediments on it because the easement holder does not
technically possess the land. Since no trespass may occur, no
damages for trespass may be awarded, but injunctive relief is
available. This ruling requires us to consider what remedies may be
given for a servient estate owner’s placement of impediments on an
easement. We review this legal question de novo. Campbell, 192
P.3d at 469.
¶ 78 In making its decision, the district court largely relied on
language from Upper Platte & Beaver Canal Co. v. Riverview
Commons General Improvement District, 250 P.3d 711, 716-17 (Colo.
App. 2010), wherein a division of this court considered whether the
42
Colorado Governmental Immunity Act (CGIA), §§ 24-10-101 to -120,
C.R.S. 2020, barred the plaintiff’s claims for declaratory, injunctive,
and restorative relief against municipal authorities that made
alterations to the plaintiff’s easement. In that context, the Upper
Platte division stated that “pure rules of trespass, which are
founded on possessory rights, . . . do not apply to easements.” 250
P.3d at 716 (quoting 1 Dan B. Dobbs, Law of Remedies 814 (2d ed.
1993)).
¶ 79 This statement is not applicable to the question raised here
because the division cited it in connection with an attempt to
construe specific statutory language in the CGIA. Moreover, in the
next sentence, the Upper Platte division noted that whether a
particular tort such as trespass is identified or not, a party that
interferes with an easement may be liable for damages based on
their interference. Id. at 717. Thus, Upper Platte is no bulwark
against an award of damages in this case.
¶ 80 Further, in Roaring Fork Club, L.P. v. St. Jude’s Co., the
supreme court expressly stated that an easement holder may be
entitled to economic damages for trespass when the owner of the
servient estate obstructs an easement. 36 P.3d 1229, 1234 (Colo.
43
2001) (concluding that the servient estate owner had trespassed on
the plaintiff’s easement by altering it, and, as a result, the dominant
estate owner “may well be entitled to damages”).
¶ 81 In Proper, 827 P.2d at 597, a division of this court considered
whether a court can award damages based on a servient estate
owner’s obstruction of an easement. It concluded that “if necessary
to grant an injured party complete relief for past interference with
his easement, the court may also award monetary damages.”10 Id.To support its holding, the Proper court cited Schmidt v. Parker
Land & Cattle Co., 517 P.2d 870, 871-72 (Colo App. 1974) (not
published pursuant to C.A.R. 35(f)), a case in which another
division of this court awarded damages to an easement holder who
was denied access to his land when the servient owner obstructed
his easement with a locked gate. Although the injury to the plaintiff
in Schmidt did not include physical damages to his land or the
easement, the court awarded damages for loss of the opportunity to
10The Proper court did not explicitly identify the defendant’s
installation of a fence blocking the easement as a trespass. But the
supreme court so characterized it in Roaring Fork Club, L.P. v. St.
Jude’s Co., 36 P.3d 1229, 1234 (Colo. 2001).
44
pasture his property and loss of the property’s reasonable rental
value. Id.¶ 82 The holdings in these cases comport with the view set forth in
the Restatement (Third) of Property, which acknowledges that
damages for violation of easement rights are available to an
easement holder whose right of way is obstructed. Restatement
(Third) of Prop.: Servitudes § 8.3 (Am. L. Inst. 2000). It states, “[f]or
obstruction of an easement, damages and injunctions requiring
removal of the obstruction, restoration of the easement, and
prohibiting future obstruction are normally appropriate.” Id.
¶ 83 In this case, Amada alleged that the Pomeroys committed
trespass by locking the gate at the entrance to the access easement
and installing a gate on the spur road at the elk fence. Gustafson
testified that, to remedy the situation, he had to leave his residence
in Arizona, drive to Colorado, and spend two nights in a hotel room
while he sought access to his land. The Pomeroys may be liable for
these damages under Colorado law.
¶ 84 We reverse the district court’s judgment insofar as it
concluded that the Pomeroys could not have trespassed on Amada’s
easement by installing or locking gates at the access and spur
45
roads. We further reverse the court’s ruling denying Amada
damages. We remand this case for a hearing on whether the
Pomeroys’ obstruction of Amada’s easement constituted trespass,
and if so, what damages should be awarded.
VII. Conclusion
¶ 85 We affirm the judgment in part, reverse it in part, and remand
for a hearing on Amada’s trespass claim.
JUDGE LIPINSKY and JUDGE PAWAR concur.
46