LR Smith Investments, LLC v. Butler
2014 COA 170
Colo. Ct. App.2014Background
- Prescriptive easement dispute: Butler appeals a trial court ruling that Smith holds two prescriptive easements across Butler’s ranch.
- Smith claims ingress/egress roads across Butler land, used for ranching and hunting with long, open use.
- Smith ranch has been owned by Smith and predecessors since at least 1954; Roads cross Butler land NW of Craig, CO.
- Roads start on east side of CR 8; northerly road from CR 3 to Smith ranch; southerly road from CR 8 to Smith ranch.
- Trial court found Smith used Roads openly, continuously for mid-1950s through 2011; Butler dug ditches in 2011, triggering litigation.
- Court applied presumption of adversity; Butler needed to show permissive use to overcome it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a presumption of adversity applies to Smith’s use | Smith’s long, open use was adverse by statute | Butler argues permissive entry and absence of adversity | Yes; presumption applies and Butler failed to prove permissive use |
| Whether actual agreement is required to prove permissive use | Permission can be implied from acts of the owner | An actual agreement is required | No; actual/implied permission can be shown without a formal agreement |
| Whether acquiescence can defeat presumption of adversity | Acquiescence may not negate adversity | Acquiescence demonstrates permission | Acquiescence does not negate adversity; court rejected notion as to permissive use |
| Whether neighborly accommodation doctrine applies | Doctrine supports permissive use by neighborly custom | Doctrine requires local custom of accommodation | Rejected; not recognized under Colorado law here |
| Whether 18-year adverse use was interrupted | Use remained continuous; any interruption did not reset period | Butler interrupted use with ditches and other actions | Record supports continuous use beyond eighteen years; no effective interruption |
Key Cases Cited
- Matoush v. Lovingood, 177 P.3d 1262 (Colo. 2008) (prescriptive-easement elements; open/notorious; duration)
- Trueblood v. Pierce, 179 P.2d 671 (Colo. 1947) (presumption of adversity when use is open for statutory period)
- Weisiger v. Harbour, 62 P.3d 1069 (Colo. App. 2002) (burden to overcome presumption of adversity)
- Cox v. Godec, 108 P.2d 876 (Colo. 1940) (entry by permission; absence of adversity absent explicit disclaimer)
- Miller v. Bell, 764 P.2d 389 (Colo. App. 1988) (presumption of adversity limited when initial entry permissive)
- Auslaender v. MacMillan, 696 P.2d 836 (Colo.) (acquiescence/silence may acquire easement but not negate adversity)
- Allen v. First Nat'l Bank, 208 P.2d 985 (Colo. 1949) (neighborly accommodation/indulgence discussed; not doctrine defeating prescription)