Family v. Pomeroy
2021 COA 73
Colo. Ct. App.2021Background
- Four adjoining parcels (A–D) near Montrose: Amada bought Parcel A in 2007 (via a deed granting a 50-foot non‑exclusive easement for ingress, egress, and utilities tied to land later acquired from the BLM), later acquired Parcel D in 2014; McGees acquired Parcels C and D from the federal government in 2012 and sold Parcels B and C to the Pomeroys in 2014.
- The original access road ran from Uncompahgre Road through Parcels B and C; Amada later built a spur road (2017) that crosses an existing elk fence on Parcel C.
- After the Pomeroys installed gates (one at the spur hole in the elk fence and one locking the access road), Amada sued for declaratory relief and trespass; Pomeroys counterclaimed, seeking recognition of an easement over Parcel A for their benefit.
- District court: recognized an express easement for Parcel A over Parcel B, held that under the common‑law after‑acquired interest doctrine Amada also had an express easement over Parcel C, found implied easements (prior use and necessity) for Parcel D across B and C (including utility rights), ordered removal of the spur gate, but denied trespass damages to Amada.
- Parties appealed: Pomeroys challenged the C easement, the implied easement to Parcel D, gate removal, and denial of enlarging a headgate easement; Amada cross‑appealed denial of trespass damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Colo. Rev. Stat. § 38‑30‑104 abrogates the common‑law after‑acquired interest doctrine and whether easements can be transferred as after‑acquired interests | Amada: statute does not abrogate common law; easements may be conveyed/vest post‑conveyance under estoppel/after‑acquired doctrine | Pomeroy: statute limits remedy to fee simple absolute transfers; easements are nonpossessory and thus not covered | Court: statute did not abrogate the common law; estoppel/after‑acquired doctrine survives and can transfer easements under its principles |
| Whether the 2007 deed’s promise produced an express easement over Parcel C in favor of Parcel A when the McGees later acquired Parcel C | Amada: the deed expressly promised the easement would include land acquired later (BLM land), so easement vested when McGees acquired C | Pomeroy: either statute precludes or common‑law doctrine inapplicable; no right to convey after‑acquired easement | Court: enforced the deed’s covenant under the after‑acquired interest/common‑law estoppel doctrine and recognized the easement over Parcel C |
| Whether Parcel D has an implied easement across Parcels B and C (prior use and necessity) and whether an easement by necessity may include utility rights | Amada: prior continuous use and necessity existed; residential development made utilities foreseeable so necessity includes utilities | Pomeroy: no common ownership/contiguous ownership prior to severance; prior use not sufficiently apparent or long; necessity shouldn’t include utilities | Court: found elements of prior use and necessity met; because Parcel D was conveyed for residential purposes, easement by necessity may include utility rights |
| Whether the Pomeroys’ gates were permissible and whether obstruction supports trespass damages | Amada: gates blocked access and constituted trespass/interference; seeks monetary damages for interference | Pomeroy: servient owner cannot ‘‘trespass’’ on easement; remedy limited to injunction, not damages | Court: ordered spur gate removed as unreasonable interference; held obstruction can support trespass damages and remanded for a damages hearing (reversing district court’s denial of damages) |
Key Cases Cited
- Premier Bank v. Bd. of Cnty. Comm’rs, 214 P.3d 574 (Colo. App. 2009) (deed interpretation and after‑acquired interest principles)
- Phillippi v. Leet, 35 P. 540 (Colo. 1893) (discussion of after‑acquired title/estoppel by deed)
- Matoush v. Lovingood, 177 P.3d 1262 (Colo. 2008) (definition of easement as nonpossessory property right)
- Lobato v. Taylor, 71 P.3d 938 (Colo. 2002) (standards for implied easements and public policy favoring reasonable use)
- Thompson v. Whinnery, 895 P.2d 537 (Colo. 1995) (scope of easement by necessity tied to reasonable/foreseeable uses)
- Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229 (Colo. 2001) (easement obstruction can give rise to monetary damages)
- Proper v. Greager, 827 P.2d 591 (Colo. App. 1992) (prior use over similar time frame sufficed to create implied easement)
- Upper Platte & Beaver Canal Co. v. Riverview Commons Gen. Imp. Dist., 250 P.3d 711 (Colo. App. 2010) (discussion of remedies for easement interference in a governmental immunity context)