Westpac Aspen Investments, LLC v. Residences at Little Nell Development, LLC
284 P.3d 131
Colo. Ct. App.2011Background
- Westpac owns Lot 2 and Henns own Lot 3 in Tipple Woods, with an express tram and staircase easement originally created in 1960.
- In 1984 the lower lots were divided; the 1984 plat did not create a path easement for the footpath across Lot 3 to Lot 2.
- In 2005 Little Nell consolidated the lower three lots and removed the tram, building a new pedestrian staircase ending in Lot 3; a temporary access easement was obtained during construction.
- Westpac resumed using a footpath across Lot 3 to access its Lot 2; Westpac later improved the path with a heated sidewalk without permits; Henns then installed a fence and locked gate across the path.
- Westpac sued for injunctive relief and to quiet title to a prescriptive easement; the trial court granted a preliminary injunction based on likelihood of success on the prescriptive easement claim and lack of practical access to Westpac’s residence.
- This appeal addresses whether the footpath across Lot 3 constitutes a prescriptive easement and whether merger or temporary nonuse affects that easement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of prescriptive easement for the footpath | Westpac | Henns | Prescriptive easement established |
| Merger extinguishing the easement | Westpac | Henns | Merger did not extinguish; no complete unity of ownership |
| Effect of temporary nonuse during construction | Westpac | Henns | Nonuse during construction did not extinguish the easement |
| propriety of the preliminary injunction | Westpac | Henns | Injunction upheld; proper balance under Rathke factors |
Key Cases Cited
- Lobato v. Taylor, 71 P.3d 938 (Colo.2002) (elements of prescriptive easement; duration 18 years)
- Trask v. Nozisko, 134 P.3d 544 (Colo.App.2006) (standard of review for easement factual findings; prescriptive use)
- Brown v. Faatz, 197 P.3d 245 (Colo.App.2008) (de novo review of legal conclusions; defer to trial court on credibility)
- Weisiger v. Harbour, 62 P.3d 1069 (Colo.App.2002) (use inferred as adverse; prescriptive use need not be explicit)
- Gleason v. Phillips, 172 Colo. 66, 470 P.2d 46 (Colo.1970) (periodic use supports prescriptive easement)
- Taylor v. Canterbury, 92 P.3d 961 (Colo.2004) (survivorship and rights within joint tenancy)
- Salazar v. Terry, 911 P.2d 1086 (Colo.1996) (common ownership interrupts eighteen-year period for adverse possession)
- Dep't of Transp. v. First Place, LLC, 148 P.3d 261 (Colo.App.2006) (abandonment requires clear, unequivocal acts; nonuse alone not abandonment)