*1 concerning ue for actions real than
applies jurisdiction to the determination of Except in
itself. the limited case of actions
qualifying purposes jurisdic- as local for
tion, venue should not be determined property.
location of real plaintiffs complaint
Because the raises against particular
contract-related claims de-
fendants, jurisdic- personal over whom it has
tion, I would find that the real subject
is the of the contract is not also the action,
subject and therefore venue in County improper by
Chaffee is not rendered 98(a).
C.R.C.P.
I judgment only. therefore concur in the MATOUSH,
Carol S. Petitioner
David H. LOVINGOOD Debra
Lovingood, Respondents.
No. 06SC823. Colorado,
Supreme Court of
En Banc.
March
1264 *2 Morrison,
Howard Springs, Colorado Colo- rado, Attorney for Petitioner.
Felt, Culichia, LLC, Monson & James W. Culichia, Shohet, Springs, David M. Colorado *3 Colorado, Attorneys Respondents. for Justice BENDER Opinion delivered the the Court.
I.
Introduction
case,
possession
this adverse
we
appeals’
review the court of
opinion in Ma
Lovingood,
toush v.
(Colo.App.2
Matoush title property to the in Lovingood, Debra in 2003. Neither of Lovingoods’ the block’s northeast in the through corner deeds nor the of deed their predecessor a warranty immediate in title specifically deed referenced referenced the easement, although prior at least one easement across deed through the surface and the chain of title Hayes did.8 Elizabeth ac- Lovingoods’ the property subsurface of and quired title to property through her in 1969 Hayes’s a property, reserving perpetual “a warranty specifically deed that over, referenced way under, and across the 1993, Hayes conveyed the easement.9 In the North 10 feet of the West 90 feet of Lot 20 property children, to herself and her Ronald ... for sewer and pipes alley water and Wellensiek, Martwick and through Bonnie a purposes.” language This was included quit claim specifically deed that did not refer- eight each of the deeds in the chain of title to ence the easement. property, Matoush’s which dates back to 1901.7 Lovingood acquired David title to his Hayes acquired property When title to her property through in 2001 warranty a deed being the easement was used for conveyed and property the pipes himself and his grease trap. Although sewer and a originally sewer, 7. The easement was created in a alley, war- West 45 feet of said Lot 20 for and ranty perpetual deed in 1901 that "a reserved purposes.” water right way over under and across the North ten (10) ninety feet of the West feet of said lot warranty conveyed property 9.The deed that twenty pipes alley for sewer and water and Hayes property in 1969 described the as "[t]he purposes.” 17, 18, East 45 feet of the West 90 feet of Lots except right way and 20 ... a over the North property conveyed In through was sewer, water, alley pur- 10 feet thereof for specifically right way deed that referenced “a poses.” over, under and across the North 10 feet removed, driveway Matoush’s is a on the There since been trap has grease from N. Nevada underground provides vehicle access running between pipes sewer alley prop- are still in Matoush’s garage and the to a located on Ave. Matoush’s proposed removing that the easement erty. buyer trial court found has use. The garage, paving used as surface driveway, relocating not been has Hayes’s property and Lovingoods’ area, across the easement as prop- access between property for alley driveway for vehicle access between 1969. At alley since at least erty and the buyer would re- garage. and the new prior fences were point some time driveway place the current addition of the easement area to enclose most built thereby pre- landscaping, house and backyards Lovingoods’ property within the venting vehicle access to Matoush’s pre- Hayes’s property. No evidence Ave. from N. Nevada the ease- regarding whether sented at trial Thereafter, brought an action Matoush right-of-way be- used as a ment was ever Martwick, Lovingoods, Hayes, against 1969, these 1969. Since tween 1901 and right to use to enforce her WellenSiek replaced. maintained or have been fences right-of-way for vehicle the easement as a link gate in the chain fence be- A small alley.10 her access between Hayes’s property and Lovingoods’ tween counterclaimed that use The defendants overgrown with shrub- property has been was terminat- unused, since at bery, thus has been posses- abandonment or adverse ed either 1980s, early gate least 1969. Since alternative, ar- the defendants sion. by a partially obstructed has been at least paved gued that use of the easement as Hayes’s property. Since short wood fence on Ma- driveway for vehicle access between 1990s, fully gate has been ob- the late alley outside the property and the toush’s Lovingoods’ fence on a tall wood structed scope of the easement. twenty-eight feet of the property. The west *6 parties presented evidence on these The and remains easement area is not fenced hearing Upon in a trial to the court. claims alley. trial court also found open to the The concluded, evidence, the trial court all the fiberglass shed located that a three-wall order, that the easement had not a written Lovingoods’ area on within the easement or by either abandonment been terminated permanent structure. property is not a trial Although the possession. adverse within the back- There are other structures unambiguous, its were court’s conclusions Hayes’s property and yards Lovingoods’ of not as analysis to treat abandonment seemed the they are not located within property, but claim, but rather as separate and distinct carriage A house situated easement area. termi- Lovingoods’ the claim to an element of property backyard Lovingoods’ of within the possession: the easement nate cor- the easement area’s southwest bounds A metal shed situated within ner. four-wall conclude, if it were would [trial] The Court Hayes’s property bounds the backyard of the general of adverse only considering the law corner. The rest area’s southeast easement have that Defendants possession, the grass with or the area is covered of easement the evidence proved by preponderance garden landscaping, including a rock other adversely possessed the that Hayes’s A backyard property. within the years. Their for over 18 easement area growing within the easement tree was once actual in that the possession has been area, years ago. it removed several but was easement, foot area on except for the 28 west, occupied fenced off and the has been attempted to sell her In Matoush possession has Their the Defendants. buyer inquired property to a who about Plaintiff. to the open been and obvious driveway access the easement as a for vehicle that alley. Their has been property and the Matoush’s between mentioned, pipes. water As Hayes’s such, for sewer and is cur- previously the easement 10. As trial, only is use of at issue in this case only pipes. the rently At the used for sewer the across easement as a surface parties stipulated would con- the that the easement properties. Lovingoods' property two tinue to burden Plaintiff has not been to use the of a claim terminate an easement ad- the able alley. posses- Abandonment, area Their possession. easement for an court of verse the held, that no one sion has been exclusive in appeals is not an element of a claim to except the has been owner of the an posses- terminate easement pos- to use the Their able easement area. sion, is an separate but rather element of a has at least since been continuous session claim to and distinct terminate an easement probably longer. difficulty The 1969 and Accordingly, abandonment. the court argument is that with Defendants’ appeals ruling the trial reversed court’s majority country rule in is: “an this ease- the case back to that for remanded court nonuse, ment cannot be lost how- be mere findings fact and conclusions of law to continued, long accompanied ever unless area determine whether use the easement part affirmative act on the (1) adverse; notorious; open was: or indicating un- owner interruption without continuous equivocal intention to abandon.” statutorily-mandated period ad- of time for As to the element ad- trial court also concluded versity, appeals court of in- specifically prove failed use of defendants the trial court to structed determine whether paved driveway as a for vehicle easement building maintaining perpendicu- fences access between Matoush’s lar incompatible to the area was easement alley is outside the scope of the easement. irreconcilable Matoush’s to use the acknowledged trial court Matoush’s as a for access proposed driveway use of the easement as standard, alley. articulating legal incompatible with the defendants’ use of rejected argu- appeals court of backyard. easement area as Neverthe- ment that use of the easement is not area less, rejected the trial court the defendants’ trigger statutorily- will not adverse and finding claim based on its the defen- period of posses- mandated time for adverse present dants failed to credible evidence re- until sion holder needs to use garding use of the when it was it, demands to use and is conclusions, created. Based on these it, denied the in the as set forth trial court ruled that the easement would appellate New York intermediate court Lovingoods’ property continue to burden Schwartz, Castle Associates 63 A.D.2d Hayes’s righLof-way, and that (N.Y.App.Div.1978). N.Y.S.2d paved could be used as a drive- way for vehicle access between Matoush’s *7 Thereafter, petitioned Matoush Court property alley. and the review, arguing for certiorari that court Lovingoods The trial appealed court’s appeals rejected of erred when it rule as ruling, arguing that trial court incorrect- set Castle forth in Associates. con- Matoush ly required proof part of abandonment as of applies tends that the Castle Associates rule by their claim to terminate the easement to this case because the easement ex- was possession. Lovingoods adverse The also ar- by deed; pressly granted warranty because incorrectly that gued the trial court deter- there is no evidence that the has easement building maintaining that mined fences ever as a been used for access perpendicular to the area in- easement property alley; between Matoush’s and the adverse, law, sufficiently of to as matter neither prede- because Matoush nor her trigger statutorily-mandated period of cessors in interest needed to ease- use the possession time adverse of 2003, prospective buyer ment until when a Lovingoods challenge The did not the trial inquired as a about the easement regarding court’s conclusions of termination driveway. paved Lovingoods urge us to by abandonment or use of the rule, distinguish the Castle con- Associates paved driveway. easement narrowly highest struing it as New York’s appeal, Ferraro, appeals On the court of concluded appeals Spiegel court of did in v. 73 erroneously 15, 15, trial required 622, court 543 N.Y.2d N.Y.S.2d 541 N.E.2d proof (1989), by satisfy noting abandonment to the elements 17 that the deed in Castle
1269
years
eighteen
bring
to
specifically identify the
such
not
Associates did
after
entry has
location,
action or make such
ac-
the easement in Castle
easement’s
first
eighteen years after
crued or within
he or
any pur-
used for
had never been
Associates
from, by,
whom he
those
or under
claims
portion
the ease-
pose,
the relevant
possessed of the prem-
have been
or
seized
Castle Associates
ment holder’s
Eighteen years’
possession
ises.
adverse
reviewing
After
developed.
never
had
been
any
land shall be conclusive evidence of
possession
adverse
Colorado cases on
ownership.
absolute
jurisdictions
ease
other
constru-
law from
rule,
ing
agree
we
Castle Associates
added).
(emphasis
Id.
applies
rule
this case.
Matoush that the
plainly
the statute
states
Because
interest,
applies
that it
real
Analysis
III.
distinguish
and because
statute does not
recognizes a cause
Whether Colorado
possessory interests such as title to
between
by
action
an easement
ad
to terminate
non-possessory
interests such as
land
so,
and,
possession
if
what elements
title to an
we conclude that
it
questions
comprise
claim are
of law
such a
applies
seeking
to an
to terminate an
action
that we
novo. See Lakeview As
review de
by
possession.
easement
adverse
(Colo.
580,
Maes,
v.
P.2d
socs.
907
583-84
claim,
To
the elements of such
determine
1995) (“An
court is not
appellate
bound
turn,
Lobato,
did in
Restate-
we
we
courts.”).
reached
lower
conclusions of law
(Third)
(2000).
Property:
ment
Servitudes
However,
reverse the trial court’s
we will not
Lobato,
(citing
at 950
both
See
Colo-
findings
findings
those
are
of fact unless
case
the Restatement
in its
rado
law and
clearly
erroneous. C.R.C.P.
claim
of a
to cre-
discussion
the elements
possession).
an
adverse
ate
easement
A.
of an Easement
Termination
an
explains
Restatement
Possession
Adverse
possession if
be terminated
adverse
will
previously
considered wheth
We have
area
adverse use of the easement
continues
an
er
use can terminate
adverse
period of
statutorily-mandated
time:
statute,
possession
under
adverse
Colorado’s
“To the extent that a use of
violates
(2007).
38-41-101(1),
section
C.R.S.
Howev
burdening
a servitude
er,
ad
previously
we
determined that
person
adversely to a
enti-
use is maintained
an easement under
verse use can create
prescrip-
servitude for
tled
enforce the
statute. See
Colorado’s
period,
person’s beneficial interest
tive
(Colo.
Taylor,
Lobato v.
extinguished.”
the servitude is modified
2002) (referencing
pos
Colorado’s adverse
The Restatement further
Restatement
7.7.
in an action to
session statute
create
claim
of a
to ter-
explains
the elements
possession);
Allen
by adverse
minate an easement
Arvada,
First
Bank
Colo.
Nat’l
claim to
mirror the
of a
create
elements
(1949) (same).
P.2d
Id.
7.7
*8
Colorado,
Assembly has de
the General
Powell,
b;
R.
cmt.
see
Richard
Powell
also
possession
clared
the law of adverse
(2007) (“As
§
Property
34.21[1]
on Real
interest
“any right
extends to
or
of or
by
of an
the case of the creation
easement
38-41-101(1)
§
property.”
(emphasis
real
adverse,
must be
con-
prescription, the uses
added).
statute,
eigh
which declares
tinuous,
prescrip-
and for the
uninterrupted,
statutorily-mandated
years
teen
to be
(internal
period.”)
cross-reference omit-
tive
possession,
period of
for adverse
reads
time
ted).
in full:
Restatement,
an ease
person
No
shall commence or maintain an
Under
possession if the
recovery
pos-
by
ment is created
adverse
action for the
title or
“(1)
notorious,
open
use
or
any right
adverse
is:
session or to enforce or establish
(2)
interruption
continued without effective
or
or to real
or make
interest period.” Restatement
prescriptive
for the
entry
an
thereon unless commenced within
§
by
2.17. Colorado case law tracks the Restate-
an easement
posses-
is created
adverse
sion,
language regarding
party
a
a
ment’s
the elements of
uses land that is not in his or
by
pos-
possession,
way
claim to create an
her
and does
in a
easement
adverse
so
that is
by prescription
property rights
party
“An
adverse to the
session:
easement
is es-
(1)
contrast,
possesses
who
prescriptive
when the
the land.
when
tablished
use is:
(2)
notorious;
an
by
pos-
easement is
adverse
open or
continued
terminated
without ef-
session, party
a
uses land that is in his or her
interruption
fective
prescriptive peri-
for the
(3)
(a)
possession,
od;
way
but does so in a
the use was either
adverse or
(b)
property rights
adverse to the
of the ease-
pursuant
attempted,
to an
but ineffective
possess
ment holder who
Lobato,
does not
the land.
grant.”
(citing
P.3d at 950
Re-
[1],
Powell,
words,
supra, §
2.16-2.17).
34.21
In other
Hence,
§§
statement
the ele-
an
dispossess
because
easement does not
ments of a claim to terminate an easement
by
owner of the
burdened
the ease-
by
possession
adverse
mirror the elements of
ment,
by
owner
burdened
by
claim to create an easement
adverse
right
the easement retains the
use
possession. Accordingly, an easement will
property,
area,
including
by
possession upon
be terminated
adverse
way that
is consistent with the easement
showing that use of the easement area was:
holder’s
Lazy Dog
use
(1) adverse to the
easement holder’s
Telluray
Corp.,
Ranch v.
Ranch
965 P.2d
(2)
easement;
notorious;
open
use the
or
(Colo.1998);
see also Restatement
interruption
continuous without effective
§ 4.9.
statutorily-mandated
period of time.
conceptual
Because of this
differ
Abandonment
an
is not
element of
ence, a
evaluation
court’s
of the element of
a claim
by
to terminate an easement
adverse
adversity will be different in a claim to termi
possession,
separate
but rather is a
and dis
by
possession
nate an easement
adverse
than
terminating
tinct method for
an easement.
it is in a
by
claim to create an easement
Queree,
146, 149-50,
See Rivera v.
145 Colo.
Powell,
possession.
adverse
supra,
40, 42
(noting
that an action
34.21[1],
§
A claim to terminate an easement
by
an
terminate
easement
abandonment is
by
possession requires
adverse
stronger
Colorado,
long-established in
citing
Hoff
showing of adverse
than a claim
use
to create
56, 59,
Corp.,
v. Girdler
104 Colo.
by
an
possession
adverse
does.
(1939)).
100, 102
a claim
While
to terminate
instance,
See id. For
the element of adversi
an easement
abandonment focuses on the
ty in a claim
to terminate an easement
holder,
conduct of the easement
a claim to
possession requires
adverse
more than a
terminate an easement
possession
adverse
showing
possession
area,
of the easement
focuses on the nature of the
the ease
usually
which is
sufficient to demonstrate
Rivera,
Compare
ment area.
145 Colo. at
adversity in a claim to
create
149-50,
B. The Element of justify terminating an easement noted, Powell, 34.21[1], As we a claim to supra, Therefore, create party claiming to have terminat similar ato claim to terminate an ed an easement must *9 adverse Thompson prove 7 on Real “that the significantly use interferes 60.08(b)(7) (David ed., § Property enough A. Thomas enjoyment with the easement owner’s 2007) (“Just as an give easement can be won of the easement to notice that the ease prescription, possession, similar to adverse so ment is Thompson, supra, under threat.” lost.”). 60.08(b)(7)(i). can it be distinguishes § What challenge these of a court’s concept claims is a grasp. inquiry difficult adversity When into the element of is that
1271 by the can use property burdened easement definition of what easily no drawn “there is expands holder’s area to resemble the to an easement the easement use is adverse Thus, the ease- whether use of as if it rights.” right Id. owner’s to use incompatible or irreconcil- ment area is an At the unburdened were trigger sufficiently time, adverse right able use the easement holder’s same period of time for ad- statutorily-mandated greater protection the easement receives be- upon the circum- depends possession right the easement holder’s to use the cause of each case. Id. stances yet has not come into functional existence. is a cir of an easement
Nonuse part of that must be considered cumstance The modern rule such cases inquiry into the element of adversi a court’s area, way in a of the easement even Powell, ty. swpra, 34.21[1].11When See easement, prevents use of the is not use, the owner of the is not trigger statutorily- and will not enjoys by the easement property burdened posses period of time for adverse mandated action.” Id. enlarged scope privileged “an until the easement holder needs to use sion then, owner of a bur Logically it, demands to use and is enjoys largest by an easement dened to use it: refused action when the easement scope privileged been created but an easement has [W]here been used. When has never use, arisen for its no occasion has used, the easement hold created but never may tenement fence owner of the servient “tit property rights are said to remain er’s not deemed his land and such use will be Annotation, Macy, ular and dormant.” J.E. adverse to the existence of by Nonuser or Loss Private Easement (1) the need for the until such time as (1952). Possession, 1265 25 A.L.R.2d Adverse (2) arises, way is made demand illustrate or dormant easements Titular tenement that the owner of the dominant rights of the ease- the tension between the opened and the owner of easement be owner of the ment holder and those of the tenement refuses to do so. the servient by the easement. When property burdened Schwartz, v. 407 N.Y.S.2d at Castle Assocs. expressly created but never an easement is used, 723.12 the extent to which the owner Therefore, 1996). guiding Restatement’s treatment of Usually, helpful Restatement is
11.
unclear,
impression. See
of issues of first
and we look to other author
our discussion
this issue is
Lobato,
III.A., supra;
71 P.3d at
Part
see also
ity-
Ranch,
950; Lazy Dog
Castle
is the first modern state-
have
Associates
rule,
through
it
developed
Spiegel
ment of
has been followed in
located and
use.”
Ferraro,
15,
jurisdictions.13 The easement
v.
543
would be northwest across the corner of the thereby upon and be called to assert his burdened Id. legal title. (internal highest appellate quotation
New
court
Id.
York’s
later
citations
marks
omitted).
Spiegel
construed the
Associates rule to
court did not
Castle
be
define
applies only
phrase “definitively
which
exception”
“narrow
located and devel-
Indus.,
Vandeleigh
Storage
13. See
LLCv.
Partners
courl “need not address the non-use of a deeded
Kirkwood,
91,
LLC,
(Del.2006);
despite
question,”
por-
A.2d
901
105
evidence
Kolouch,
879;
Turner,
813 P.2d at
Halverson v.
tion of the easement
had never
area
been used
168,
1285,
(1994); City
holders).
268 Mont.
1290
Williams,
632,
Wash.App.
Edmonds v.
54
774
disapprove
At least one
court seemed
of the
1241,
(1989);
Hoblyn,
P.2d
rule,
1244
Mueller v.
887
although we
Castle Associates
note that the
500,
(Wyo.1994);
P.2d
507
see also Sabino Town
"Although
disapproval
in dicta:
we need
was
Ass’n,
Country
(applying
&
Estates
at 30
point,
reach the
least doubtful
it is at
that the law
only
partial extinguishment
rule
for
"claims
is consistent
this Commonwealth
with the
use”).
scope
an easement’s
O’Brien,
Yagjian
Castle Associates decision.”
v.
733,
202,
Mass.App.Ct.
cases,
477 N.E.2d
204 n. 5
apply
the courts
some recent
neither
Mueller,
(1985);
(Thom
rule,
see also
rule to
factual circumstances.
Lovingoods argue
that the Castle As-
irrespective
Associates rule
apply the Castle
imposes
sociates rule
an additional element
spe-
the easement’s location was
of whether
contemplated
that is not
Colorado’s ad-
conveyance, or
cifically
in the
identified
statute and case law. We
property had
the easement holder’s
whether
think otherwise.
Although these cases are
developed.15
been
consistently ap-
factually unique, courts have
applied,
As
the Castle Associates
rule to cases
plied the Castle Associates
rule does not create a new element for claims
expressly
which the easement at issue was
posses
terminate an easement
created
never used.
but
Rather, the rule informs a court’s in
sion.
policy reasons that
There are a number of
adversity, specifi
quiry
to the element of
as
First,
rule.
as
support the Castle Associates
cally when use of the easement area becomes
explained,
is consis-
previously
we
the rule
trigger
incompatible or irreconcilable so as to
of the
tent
the notion that
the owner
statutorily-mandated period
for adverse
retains
property burdened
possession in cases where the easement
right
his or her
expressly created but never used. The Cas
way
interfere with the ease-
that does not
only
tle Associates rule not
reinforces Colo
ment holder’s
regarding
policy
rado’s
concerns
land use but
Second,
comports
long-
with the
the rule
posses
also conforms to the state’s adverse
that an
cannot
principle
established
basis, we
sion statute and case law. On this
Third,
this rule
be lost
mere nonuse.
rule and hold
follow
Castle Associates
easements,
respects
which are easi-
recorded
if
created but
an easement
ly
through title
instruments.
traceable
used,
area is
never
then use of the easement
Fourth,
duty
have a
purchasers
trigger
not adverse and will not
the statutori
inquiry
whether an easement
to determine
period
pos
time for adverse
ly-mandated
and are on constructive
burdens
until the easement holder needs
session
Fifth,
pur-
of such easements.
notice
use the easement.
price
reflects the benefit or
chase
of an
and the rule rein-
burden
Application
C.
buyers
bargains made between
forces
Lovingoods allege
In this
Last,
prevents
the rule
an easement
sellers.
adversely possessed Ma-
expense
incurring litigation
from
holder
"hiking, jogging,
through use of easement for
14. One court has
Castle Associates
characterized
involving
passage”
riding,
moped riding”).
easement of
“an unlocated
horseback
some
"undeveloped
Yagjian, 477
backland.”
across
following
factually
differ
from Castle
cases
N.E.2d at 204 n. 5.
the easement holder’s land had
Associates in that
Country
developed: Sabino Town &
Estates
been
factually
following
from Cas
15. The
cases differ
Ass’n,
(residence); Vandeleigh
warranty deed and because the easement has reason, this Lovingoods because the do been used pipes. Matoush for sewer challenge sufficiency pre- not of evidence trial, at sented we defer to the trial court’s discussed, previously jurisdictions As other findings of fact. See First Interstate Bank v. applied the Castle Associates rule even Tanktech, Inc., (Colo.1993) 116, 864 P.2d 122 if the specifically easement’s location was (‘We findings defer to of fact the trial conveyance identified in the and even if the clearly court unless sup- erroneous and not only part claim was to terminate of the ease- record.”). ported by the words, ment In other jurisdictions in courts other determine Although the trial findings court made its applies by whether the Castle Associates rule of fact in connection with a different claim considering whether the easement was ex- than the one that in appeal, is raised this we pressly created and whether the easement findings conclude the trial court’s of fact has ever particular purpose been used for the adequately developed are sufficiently re seeking Hence, the claimant is to terminate. key legal lated to the appeal issue this applies whether the Castle Associates rule support our decision to resolve this case on argues, depends upon as Matoush the merits. See ITT Credit Diversified whether the expressly easement was created Couch, (Colo. 1355, Corp. v. and whether it right- has ever been used as a 1983) (resolving case on the merits where of-way. The fact that the easement has been disputed pivotal facts were not issues pipes used for sewer since least 1969 is law); questions involved People see also Lovingoods’ irrelevant to the claim that D.F., (Colo.1997) 9, (noting have terminated Matoush’s to use the findings we remand for further of fact when right-of-way. easement as a surface appellate review is hindered an absence of findings of key facts that are to contested undisputed It the easement was issues, or when evidentiary unresolved con by warranty created deed facts). regard flicts exist with to material undisputed It is also that the easement has not right-of-way been used as a for access Because there was no presented evidence between alley Matoush’s regarding at trial use of the since at least 1969. As to whether the regarding ease- whether the easement was ever ment right-of-way was used as a prior to used as a between 1901 and the trial court found that there was no and because there is undisputed evi- presented regarding evidence at trial use of dence that the easement has never been used the easement in speculation other than since at least we hold that the Castle may that the easement have been used for applies Associates rule to this case and that coal wagon. finding deliveries Lovingoods’ This of fact use of the easement area was made in connection with the trial court’s was not adverse to Matoush’s to use the determination that use of the easement as easement as a until Matoush purpose adversity show when the easement holder needed to use the easement Therefore, Lovingoods way. not developed have not has in 2003. Where, here, right to the ease- an easement holder use has terminated right-of-way. developed the servient ment as a surface estate may owner the easement area to a far Conclusion IV. in a greater involving extent than case developed By way example, easement. let decision, appeals’ the court We reverse suppose developed had us that Matoush ruling affirm trial court’s that Matoush *13 driveway in order to access the retains her Then, alley the vehicle. with her let us right-of-way for access between her suppose Lovingoods erected that the the this the alley, and and return case to the driveway structures did over the that returned the trial appeals court of to be to shed). (i.e., the fencing, grass, the judgment entry court an consistent easily area would Those uses of the easement opinion. with this incompatible deemed
be inconsistent having with interest in EID, concurring. Matoush’s clear Justice contrast, Here, by path alley. to the Ma- join I opinion I of the court. write developed toush had not however, my separately, disagree- to note that were therefore the structures built dissenting opinion’s suggestion ment with the Lovingoods easily could be of which —all ruling is inconsistent with the court’s point removed at future when some Matoush principles and based on “bor- Colorado law wanted to not use the easement —were incon- op. Dissent at from elsewhere. row[ed]” incompatible sistent or with inter- Adversity est. of use cannot be determined It is under Colorado law well established vacuum, in a rather must be determined but owners, such as the Lo servient estate comparison sought in to the interest to be any way vingoods, may their use extinguished undeveloped this —in not the easement holder’s inconsistent with easement. See, Dog e.g., Lazy Ranch v. Tellu interest. 1229, (Colo. ray Corp., 965 P.2d 1234 Ranch my view, analysis employs In the court 1998); Irrigation Empire Bijou Dist. v. longstand- today application of a simply an (Colo.1991) Club, 175, (citing P.2d 183 804 namely, ing principle of Colorado law— eases). Thus, the servient estate owner can may his prop- the servient owner use estate possession simply demonstrate erty long as to the extent as that use fullest showing property, that he used be is not with the holder’s inconsistent clearly entitled to do as the cause he is so interest, only a use and that therefore that is Instead, property. owner of the servient incompatible clearly with inconsistent particular show that his estate owner must “adverse” —to a that interest be deemed will clearly inconsistent use undeveloped involving situation easement. the easement holder’s incompatible with such, principle it from As does not borrow truly that the use is interest in order to show jurisdictions, suggests, other as the dissent 1270-71; Maj. op. 38-41- “adverse.” rather instructive number of but finds 101(1), (2007). C.R.S. jurisdictions apply from cases other recognized to ease, principle facts what same we we consider sort of this Zab, presented here.1 See required owner is similar those servient estate Williams, 632, 1241, alia, Wash.App. (citing, maj. op. Ko v. 54 1. See at 1271-73 inter 65, Kramer, 876, (1989) (same); Hoblyn, louch 120 Idaho v. Mueller v. 887 1243-44 (1991)(applying principle that servient 500, (same); 879-80 504, (Wyo.1994) v. P.2d 507 Brooks clearly estate use must be inconsistent owner’s 767867, 288354, Geraghty, 2005 WL at *6 No. adverse); interest be easement holder’s 2005) (same)). (Mass.Land Apr.6, See also Ct. Indus., Storage Vandeleigh LLC v. Partners of 510, 382, Muellner, 932 v. 283 Conn. A.2d Smith LLC, 91, (Del.2006) Kirkwood, 901 A.2d 105 temporary (concluding that struc- 389-90 Turner, 168, (same); 268 885 Halverson v. Mont. area were not inconsistent tures 1285, (1994) (same); City P.2d Edmonds 1290 1276 Berenergy Corp., precise
Inc. v. 136 yet P.3d locations of which are as undeter- (Colo.2006)(Eid, J., Ferraro, specially concurring). Spiegel mined. See 73 N.Y.2d N.Y.S.2d N.E.2d COATS, dissenting.
Justice (explaining addressing only Castle as easements, actually unlocated like one I too would find that an easement is a case). involved in that At least when limited property, or interest in real the exer- fashion, rationally this the rule is related may cise enforcement of which be lost important requirement of notice to the failing appropriate to take action within the estate, always dominant which has been inte- statutorily prescribed period; limitations but gral acquisition by possession. majority, justification unlike I can find no contrast, By where, nonuse notwithstand- judicial imposition special of a rule of ing, certainty there is about the location of easements, accrual for one narrow class (as case) majority’s largely exempting them from loss justifications policy amount to little more majori- It seems clear that the arguments against than adhering to the doc- rule, ty’s new modeled after variations re- *14 possession. By trine of shifting the cently adopted in jurisdic- a handful of other “adversity” tiny focus of for this class of tions, does not reflect the common law of cases, from a concern for the nature and and, determine, England as I best can does permanence of the encroachment itself to a embody jurisdic- not even the rationale of the strictly existing concern easement- thought tion that it up. importantly, Most it, holder’s in putting interest an end to however, even if I considered such a rule (but majority’s rigid, universally mechanical policy, I meritorious would nevertheless re- applicable) actually rule1 flies the face of ject judicial adoption flagrant usurpa- its policies equities furthered function, legislative tion of the allocated else- doctrine of adverse Presumably, where our constitution. majority’s permit rule would a forced Despite majority’s protestations removal of a long-standing permanent even contrary, my view it out an excep- carves structure, house, like a long as the ease- tion to section 38^41-101 of the revised stat- ment brings holder his eighteen action within utes, legislatively prescribed any bar to years actually deciding that he wants to action to enforce an interest real make use of expressly his easement and de- not brought eighteen years within after the manding the structure’s removal. Solely to do so first accrues. for ease- majority’s Whether rule has merit ments that expressly were created but never however, policy perspective, from a I consid- use, yet put majority declares that a legislative er a majority, matter. which cause of action to enforce the easement dates its so-called “modern rule” from against obstruction the servient estate does not assert that it at existed the common only need, demand, upon refusal, accrues law, Assembly as the General has allowed simply notorious, rather than upon open, that law to remain in jurisdic- effect in this incompatible usage by the servient estate. tion, 2-4-111, (2007), see C.R.S. York, Even in New the state from which Restatement certainly most does not. See majority borrows the idea for excep (Third) Property: Restatement Servitudes tion, Schwartz, see (2000). Castle Associates v. 7.7 Nor do I consider this court A.D.2d 407 N.Y.S.2d (N.Y.App. constitutionally empowered to develop new Div.1978), jurisdiction’s high court exceptions limits accepted common law doc- exception’s applicability trines, any easements the legislative provisions, more than undeveloped with easement holder's adversity. "Following interest in precedent ju- in other adverse). risdictions,” easement and thus were maj. op. majority accrual, adopts preventing a hard and fast rule of Despite concurring opinion’s attempt noble period commencement of the limitations until majority to terms, palatable recast the rule in more the easement holder decides to make use of his unyielding language majority's though even a servient estate’s en- holding simply merely cannot be read to incompatible every include croachment be conceiv- nonuse as a consideration in the determination able use the holder. government I evidentiary Because believe our form of guise announcing under the decide, Assembly legis- to the General such majority does allocates as the guidelines. To decisions, respectfully lative I dissent. today, in the limited case easements, never used created but an obstructed bring an action to enforce only upon actual need
easement accrues hold- demand
unsuccessful
er, openly incompa- upon than rather holder’s
tible with the easement judi-
interest, nothing than amounts to less
cially legislating law. substantive