ge Condominium Association, Inc. v. Lo Viento Blanco, LLC
2020 COA 34
Colo. Ct. App.2020Background
- Woodbridge Condominium Association (Woodbridge) used a 0.452-acre parcel in Snowmass Village continuously from 1975 to at least 2012 for amenities: mowing/landscaping, a gravel access road and parking for Building 31, signage, sprinkler systems, tree plantings, skier pedestrian access to a bridge, and erosion/drainage control.
- Foy (and its successor) retained record title to the disputed parcel; in 1991 Foy sent a letter offering conditional permission to landscape, and in June 1992 Woodbridge offered to buy the parcel (no response).
- At bench trial the court originally quieted title to Woodbridge by adverse possession; a prior division of the court of appeals reversed on adverse possession grounds, holding Woodbridges 1992 letter defeated the hostility element, and remanded for consideration of easement claims.
- On remand a different trial judge (on the existing record) found Woodbridge had a prescriptive easement over most of the parcel and defined its geographic scope and permitted uses; Lo Viento (later purchaser) appealed.
- The court of appeals affirmed: it held that the adversity standard for prescriptive easements differs from adverse possession (exclusive ownership claim required for adverse possession but not for prescriptive easement) and that the record supports Woodbridges adverse, open, continuous, uninterrupted use and the trial courts scope and exclusivity rulings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the prior appellate ruling that Woodbridges 1992 letter defeated adverse possession controls the prescriptive-easement claim (law of the case). | Woodbridge: prior decision addressed adverse possession only; prescriptive-easement adversity is a different legal standard. | Lo Viento: the prior division rebutted the presumption of adversity and that should apply on remand. | The prior decision did not control the easement claim; prescriptive-easement adversity differs from adverse possession adversity. |
| Whether Woodbridges use was permissive (Foys 1991 letter granted permission) or adverse. | Woodbridge: Foys letter was conditional and Woodbridge never accepted the conditions; use was nonpermissive. | Lo Viento: the 1991 letter granted permission, defeating the presumption of adversity. | Trial courts factual finding that the letter was conditional and not accepted is supported; no permissive use shown; presumption of adversity stands. |
| Whether recognition of the owners title (attempts to buy or negotiate) defeats prescriptive-easement adversity. | Woodbridge: acknowledgment of title does not equal subordination or permission; efforts to buy do not preclude adverse use. | Lo Viento: acknowledgment/attempts to purchase interrupt prescriptive use and rebut adversity. | The court held acknowledgment does not necessarily defeat a prescriptive-easement claim; only authorization or subordination does. |
| Whether the trial court correctly limited scope and permitted uses (gravel road, entrance landscaping/signage/sprinklers, skier access, drainage) and whether an exclusive prescriptive easement is permitted. | Woodbridge: the historical uses support these categories; changes are evolution in degree not kind; exclusivity is supported by exclusive historic use. | Lo Viento: some uses exceed the original use and may overburden the servient estate; exclusive easements not recognized. | The court upheld the scope: uses are consistent with the prescriptive use that created the easement; exclusive prescriptive easements are recognized and the record supports exclusivity. |
Key Cases Cited
- Lobato v. Taylor, 71 P.3d 938 (Colo. 2002) (elements for prescriptive easement and discussion of Restatement test)
- Smith v. Hayden, 772 P.2d 47 (Colo. 1989) (elements of adverse possession including requirement of exclusivity)
- Anderson v. Cold Spring Tungsten, Inc., 458 P.2d 756 (Colo. 1969) (hostility requires claim of exclusive ownership in adverse possession)
- Wright v. Horse Creek Ranches, 697 P.2d 384 (Colo. 1985) (scope of a prescriptive easement is fixed by the use creating it; reasonable evolution allowed)
- Trueblood v. Pierce, 179 P.2d 671 (Colo. 1947) (presumption that long, open, continuous use is adverse; landowner can rebut by showing permission)