McIntyre v. Board of County Commissioners

ample support upholding suppression the record for the trial the trial court’s order, require every bilingual we do not that finding that the defendant was not court’s suspect effort between an officer and a be of and did not understand adequately advised perfect scrutiny. in order to withstand In- accept rights, his and therefore Miranda deed, require only we that a defendant “mini- finding purposes of our constitu- that mally understand” that he had the Owens, analysis. People v. tional See present remain silent and to have counsel (Colo.1999) (“The 704, 707 trial court’s anything he said could be used findings of historical fact are entitled to def- against Al-Yousif, him. 49 P.3d at 1172. will appellate erence courts and be Moreover, recognize we that the exclusion of they supported by if are not com- overturned signs statements where “there were no indi- evidence.”). Additionally, petent reviewing any cating degree of confusion serves no ultimate conclusion of law de the trial court’s purpose nothing because there is more the novo, Aguilar-Ramos agree was not do, police objectionable could nor is there sufficiently rights advised of his under Mi- (internal police quota- behavior.” Id. at 1170 and, consequently, randa that his waiver omitted). However, where, here, tions knowing intelligent. could not have been police fail accurately communicate to the Detective Lobato’s difficulties in communi- Miranda, rights defendant his basic under cating Aguilar-Ramos were evident and the defendant is therefore unable to interview, from it rights, any resulting the outset when took understand those waiver eight constitutionally attempts the detective to learn his sus- be deemed insufficient. fact, testified, pect’s as he later name. IY. CONCLUSION linguistic was aware of the the detective bar- interrogation rier at the time of the and even findings Because the trial court’s sought from other officers assistance who minimally defendant did not even understand unavailable at apparently rights were time. as read to him supported by are Moreover, although frequently record, competent defendant evidence in the and the “yes” applied when asked if he trial court responded appropriate understood constitu- interjected “yes” “yeah” findings, tional standard to rights, his he also those we affirm form, suppression the trial court’s reading of the order. throughout the Miranda moments, inappropriate and at other such affirmation cannot be taken as a his comprehension.

serious indicator When attempt

Aguilar-Ramos did to learn more attorney, about his to an

information ignored either question his was misunder- Kim McINTYRE and Steve altogether, and he was instead directed stood McIntyre, Petitioners, rights he understood to indicate that his “job it the detective’s to talk because was COMMISSIONERS, BOARD OF COUNTY people.” Finally, throughout with all the COUNTY, Colorado; GUNNISON Sierra disjoint- evident interrogation, it is from the Corp. Omya Inc., Respon- Minerals questions and answers that ed nature dents. frequently had no idea what the party each No. 02SC803. Thus, talking looking about. other totality surrounding of the circumstances Supreme Colorado, Court of clearly interrogation, defendant did En Banc. rights sufficiently not understand his March them, inability and that should have waive recognized been Detective Lobato even beginning

from contact. their act,” "voluntary ¡mowing intelligent such that was not a under Miranda. See Me- his waiver leaving only jia-Mendoza, the issue of whether the waiver was 965 P.2d at 780. McIntyre, McIntyre, Tempe,

Kim Steve Arizona, Appearing Petitioners Pro Se. Colorado, Gunnison, Baumgarten, David Attorney Respondent. Dickhaus, Lyons,

Beth A. Thomas Den- J. ver, Colorado, Curiae, Attorneys for Amicus Counties, Inc. Colorado opinion Justice HOBBS delivered the court. granted

We certiorari this case to re appeals view the court of decision in Board of McIntyre, Comm’rs No. 01CA2408, (Colo.App. WL 2002).1 Sept.19, The trial court ruled summary judgment that Gunnison by prescription had obtained a road across private pursuant certain lands to section 43- (2002). 2-201(l)(e), 11 C.R.S. The court of trial affirmed the court. We reverse. hold that the failed to meet the right requirement of section 43-2- 201(1)(c) for the establishment aof by prescription McIntyre across the lands.

I. petitioners, McIntyre The Kim and Steve (McIntyres) mining own six claims near the County. They Town of Marble in Gunnison purchased property Schooley their from L.E. (Schooley) Schooley and Associates in 1994. acquired property by virtue of a tax 1960; there deed is no evidence record of a deed in the chain of title dedication, reservation, excep- contains a McIntyre tion for a road across the property. McIntyre property portion

The includes a tramway of an old electric route Company operated Colorado Yule Marble following respondent granted petitioners' certiorari on the 1. We issues: 2. Whether denied process prior constitutional to due 43-2-201(l)(c), 1. Whether section 11 C.R.S. property deprivation by taldng a trail (2002) requires government give no- prescription petitioners' private across tice of use or of property respon- as a road where acquiring before to the landowner petitioners dent never notified claim prescription. that trail. use of liability arising deteriorating from the foot- from its Town of Marble marble to the haul adjoins McIntyre path and wastes that walkers left on their quarry. quarry The McIntyres property, footpath closed the land. property in across their the mid-90s. oper- Company ceased In 1941 the Marble quarry was used from the ations. Marble present graveled At road from Marble and the Tomb building the Lincoln Memorial lot, parking ends in a located off of the Soldier, among other notable of the Unknown McIntyre property, persons from which can States; so the buildings in the United private quarry take a tour to the site on a significant historical and quarry site has quarry operators trail or the road that the to the Town of Marble tourist value McIntyre property installed off of the County. public has traversed Gunnison quarry’s vicinity 1990s. Foot access to the three-plus mile route from approximately the parking also available from the lot via Forest quarry to the site since the Town of Marble Service trails. vehicle and by four wheel drive the 1940s Only footpath a exists across the footpath. during prescriptive period At no time the steep gradi- McIntyre property because of a from the 1960s to the 1990s the trial court Creek, away Yule severe that veers from ent found to exist in this case did Gunnison footpath, mar- of the erosion on sections County footpath include the across the McIn- vehicle access spoil piles which block ble tyre property system, on its road and trail McIntyre lands. across the perform any activity the maintenance on Bush, Schooley partner, testified path. a The uncontested evidence in the rec- William per eight people ord, to approximately testimony County that six including of Gunnison tramway former route officials, week walked the County as- the never McIntyre from the 1960s property the across “jurisdiction” sumed over the trail on the quarry site and to the 1990s to access the McIntyre property during the for recreation. Bush built and public lands period. tram- maintained a fence across the former McIntyres the commenced when McIntyre a

way property on the for route excluding public from their members of the early in the to mid 1960s. Some short time property, County brought this ac- Gunnison prop- people who walked across the of these them, declaratory against seeking a tion erty during requested the to the 1990s 1960s McIntyre judgment that the route across the requested, permission; some did not. When property pursuant a to section always permission. granted Bush Bush tes- 2—201(l)(c). Following evidentiary hear- 43— any of the tified that he never saw member granted preliminary court ings, the trial property. to cross the vehicle injunction against McIntyres in favor of 1986, Schooley gave permission written County, barring preventing them from Department of Mined Land to the Colorado using foot- members of the from Reclamation to enter the and build path. over a washed out section boardwalk part of a mined land reclama- route as state County pleadings under The amended its safety project tion on the Colorado Yule quiet against proper- all 105 to title C.R.C.P. Company quarry agree- site. This Marble tramway ty along owners the old route from expressly provided the landowner ment proceedings, After further the trial Marble. rights by granting permis- access waived no quiet court entered a title decree “for sion the State. highway pursuant 43-2- C.R.S. 201(l)(c) 1990s, under the Marble dedicated to uses In the the Colorado Yule jurisdiction County Company reopened quarry. Avoiding of the Board of Commis- Gunnison, County tramway of the Colorado” portion impassable old sioners length and width of the old McIntyre property, for the entire route across the route, sixty tramway up to feet width. Company cut a new road to access Marble party to court of affirmed. No quarry vehicle-passable portion from The action, quiet title other than Mein- tramway of the old route. about Concerned challenge right requirement, provide us to the claimant must tyres, appears before reasonably diligent that a quiet title decree. landown- er would have had notice of the McIntyre to the Limiting our decision public right way. intent to create that the trial court and property, we conclude include act on evidence must some overt properly apply appeals failed to court of entity part responsible pub- County Comm’rs v. criteria of Board of jurisdiction give lic roads sufficient to (Colo.1984), P.2d 975 in con- Flickinger, 687 notice of the This sidering road existed whether to the notification landowners starts McIntyre property. prescription across the notice, prescriptive period; without such Flickinger Among requirements, re- other prescriptive period begin. does not entity quires prove a claim of ,of to the road. The facts record support summary judgment do not Prescription A. Private and Public Road took overt action meet- Gunnison Prescription Differentiated ing to com- running prescriptive period mence The case before us commenced as an ac road on the McIn- establishment against McIntyres, then became a 43-2-201(l)(c). tyre property under section quiet title action between Gunnison ap- court and court of Accordingly, the trial pursuant and all claimants to C.R.C.P. 105. ruling footpath along peals erred in provides complete adjudication This rule for tramway the former route across the McIn- who, served, rights parties of the of all when tyre public by pre- property became a road opportunity adjudicate have the their scription. to an interest in the real property. Board Comm’rs v. of II. Timroth, (Colo.2004). hold that failed to We us, In the case before the trial court and meet the claim of of sec twenty years the court of ruled that 43-2-201(l)(c) establishment of a tion for the public property of use adverse to the owner public by prescription across the road McIn was itself sufficient to establish road tyre property. 43-2-201(l)(c). by prescription under section case, conducting In our review this rulings requirements These make the for may recognize we that a court enter sum private prescriptive rights public pres- and mary judgment disputed is no when there criptive rights equivalent road of each moving party issue of material fact and the They other. are not. judgment a matter of law. entitled to granting summary review de novo an order regard private prescriptive rights, judgment. Aspen Workshop, Inc. Wilderness 38-41-101(1), (2003), pro- section 10 C.R.S. Bd., v. Colorado Water Conservation eighteen years posses- vides that of “adverse (Colo.1995). 1251, 1256 sion of land shall be conclusive evidence ownership” recovery Our decision in this case reiterates that the of absolute a case for by prescription claimant for road possession by prior of title or owner of (1) following: must mem- demonstrate property. pro- the real Section 38-41-103 of used the in a bers have vides, addition, that a continuous claim of manner adverse to the landowner’s interest ownership under the color of a record con- (2) right; and a claim under has veyance “prima or other instrument facie road, continuously, twenty used the for possession” during of adverse (3) years; had actual the landowner or prescriptive period. Section 38-41-106 re- implied public’s knowledge of the use and eighteen year period duces seven objection no to that use of the road. made residence, years occupancy, pos- when the possessor session of the adverse is under concerned here with the claim of

We are title, equity right requirement. satisfy claim color of in law or deducible of To construing record, or the our case law section 43-2- of Colorado from State 201(l)(c), recognizes is one of these' states. Colorado Section 38-41-108 United States. possession in actual persons the title analysis, conducting our we turn first to color of title who have under claim and lands road; what constitutes a then we ex- paid taxes on the possessed the lands right requirement the claim of amine years. To the same effect property for seven accompany adverse use in 38-41-109, applicable to vacant and is section by prescrip- road to exist order unoccupied land. tion. private prescription Missing from the 43-2- is the of section

statutes A B. What Is Road Under 201(1) the claimant of 43-2-201(l)(c)? Section a claim right must demonstrate what We first address constitutes “road” use adverse to the landowner purposes prescription under sec- twenty year prescriptive period. As set 43-2-201(l)(c).2 Pettit, In Simon v. law, forth our case (Colo.1984), P.2d 1299 the claimed (1) 43-2-201(l)(c) are: members of section “roads” were two “narrow but well-defined the road under a must have used footpaths” private property across that mem- adverse to the a manner had used for recreational bers (2) interest; landowner’s twenty statutory year period. access for the interruption must have used the road without previous Id. at 1300. decision in Hale v. Our statutory twenty years; and period for the Sullivan, (1961), Colo. actual the landowner must have had provided definition of “road.” In for broad knowledge use of the road and adopted a more restrictive defini- Simon objection Board made no to such use. tion. Comm’rs (Colo.1984). legislature did not intend We held that the synonymous “public “road” or the terms contrast, private prescriptive 43-2-201(l)(c) highway” in to include section “(1) the use is: easement is established when adversely to footpaths all Colorado used (2) notorious; ef open or continued without by public for the members of the landowner interruption [eighteen years]; and fective for twenty years legisla- more. the or (a) (b) (3) the was either adverse or ture intend that the courts consider did attempted, pursuant to an but ineffective characteristics, conditions, and locations of grant.” Taylor, 71 P.3d Lobato Simon, ways applying the statute. (Colo.2002). P.2d at 1302-03. (Third) Property: The Restatement (2002) entity that re- recognizes § cmt. f We concluded Servitudes 2.18 in the sponsible maintaining public roads although, general, for that action, or jurisdiction must take some formal public prescriptive easement are the for easement, informal, indicating to treat the private its intention same as those for a some at 1303 body way as a road. Id. require governmental states do Comm’rs, ownership through (citing Kratina v. Board some claim of acts assert (1976)). by P.2d 1232 As shown 219 Kan. of maintenance or otherwise. stale, 43-2-201(l)(c) county, municipal highways; and provides Part "[a]ll and 2. Section private highways. been used roads over lands that have county and 2 addresses other adversely interruption objection on without or part public prescription It is within this twenty part lands for of the owners of such therefore, codified; any it follows statute is years" public highways. Read in consecutive context with the other are statute, "road,” contemplated as provisions 43- of section county or other the definition of meet 2-201(1), (l)(c) requires some form of subsection highway. contain a defini- Since Part does not by appropriate knowing "action or inaction section, case law for the tional we turn our body” public right. governmental Simon v. for pub- purposes of the "road” for the definition of Pettit, (Colo.1984). Tide 43 prescriptive right lic statute. transportation; 2 addresses addresses Article Simon year prescription reliance in on the period, coupled Our Kansas Su with use in Kratina preme highly period, Court decision for that would meet both significant to the case before us. The Kan adversity require- the claim of and the emphasized Supreme sas Court that “mere prescriptive public ments for a road within traveling public ambiguous” 43-2-201(l)(c). meaning Si- of section mon, per use was with landowner to whether the Nevertheless, 687 P.2d at 1303. be- hand, the other mission or not. On “where City cause there was no evidence that the action, positive public officials take some ei existed, paths Boulder even knew the much formally informally, improv ther or such as any way less accepted maintained them or road, maintaining ing or the intention of streets, them as we held that at least is unmistakable.” Krati prov- claimants had not met their burden of na, 504-05, 219 Kan. at 548 P.2d at 1237. ing pursuant a claim right to section 43-2- by public a road is worked “When authorities 201(l)(c). chargeable knowledge the owner is with the in Simon rec- reasoning holding Our they right.” do so under a claim of 43-2-201(l)(c) ognizes appears that section at statutory provisions pertaining to the any positive Due to the lack of action acquisition, funding, and maintenance of claiming township or that demon- state, county, city sys- roads and road right, Supreme strated a claim of the Kansas provisions, tems. county, Under these Court ruled that there could be no (1) example, may obtain a by prescription: express implied dedication of the road to event, any the court is satisfied that public by owner, section 43- adopted equitable the rule here is the more (2) 2-201(l)(a),(b); purchase right-of- of a one, and will resolve the difficulties inher- (3) way, 43-2-204; section condemnation and attempting ent in to determine the intent payment just compensation proper- landowner and of the on the ty necessary interest for the sections ambiguous basis of acts alone. The cases 43-2-204; 43-2-112 prescription, others, just cited and to the extent that 43-2-201(l)(c). section As we discuss in they support the establishment of a below, proceed by more detail the fourth alone, road based on travel means, public entity must establish its dispense by public action authori- right by puts some overt action that ties, disapproved. are the landowner on notice that it intends to In any recog- this case there was never public way include the within sys- its road nition, informal, formal of disputed the tem; public way then can the be consid- by any public body. road Under the rule “public highway,” ered a “road” or thus be- just announced there could be no ginning prescriptive period the under section by prescription. road 43-2-201(l)(c). 506-07, Id. 548 P.2d at 1238. 43-2-201(l)(c), explicating When section Requirements Obtaining C. a the Kratina adopted applied we and by Public Prescription Road Flickinger and Simon. rule in In Si- mon, recognized we footpath might that a The claimant of a prescriptive right qualify jurisdiction as a road the if a private property road across has government’s it were included on map of proving compliance the burden of with the system. its road We assumed requirements that an action prepon for such a public entity, of placing such as Board Coun the foot- derance of the In evidence.3 of ty path city (Colo. Flickinger, Comm’rsv. map requisite twenty for the 687 P.2d 975 Flickinger, In by prescription by when decided the stan of road clear and con proof possession evidence). vincing dard of in adverse cases was in Gerner v. Sulli van, convincing (Colo.1989) clear and evidence. See we overruled the 7; Masden, 687 P.2d at convincing language 981 n. Board Comm’rs clear and and Masden, (1963) preponderance held that a standard of of the (holding public entity prove applies possession had to existence to adverse cases. 43-2-201(1)(c) to with the use of the road until 1977. In 1984), section we construed increasing because of concerns about three-part claimant to meet require the people crossing property number of their via road test for the establishment Flickingers existing locked an prescription: Department Highways gate. 1978 the (1) public must have used members of the public highway struck the road from the and road under a claim inventory contributing payment and ceased proper- adverse to the landowner’s manner Saguache County maintain of funds to interest; ty road. Id. at 979. (2) have used the road must injunc- Saguache County sought then an statutory peri- interruption for the without locking barring Flickingers from twenty years; od prohibit public gate to access to the road. (3) must have had actual the landowner Ruling the road was indeed a knowledge of the implied by prescription, road the trial court issued objection no to such the road and made injunction. requested Id. at 980. We use. 43-2-201(l)(c), affirmed under section hold- added). part first (emphasis The Id. at 980 ing that the common law this section codifies includes both method which the can obtain a factual situation Flickinger presented by pre- road property interest very case before us now. different from the scription. identified the We part county the road as included necessary acquisition: an for such county system.4 proper After of the road (1) have road: under a claim used the hearings, adopted notifications and the Board and in a manner to the adverse map Saguache map as the official (2) interest; landowner’s without road was system. Because the interruption statutory period of twen- for the county system, it now included ty years; the landowner had actual or eligible for state maintenance funds became knowledge implied use and did receiving Saguache County began funds object to use. added that when not such Id. at 978-79. in order to maintain the road. has continued a claimant shows that the use 1970s, county time, em- During the 1960s and prescriptive period for the the claim- using county equip- ployees graded presumption the road that the use ant is afforded a Additionally, the ment several times. was adverse.5 under the road installed two culverts gate at Flickingers argued that road at the re- and cleared from the snow prevented the road the foot of Flickingers quest of local ranchers. The establishing requirement of adversi- from always used the

were aware they never ty, despite the fact gov- purposes and that road for recreational concluded gate until 1977. We locked adja- employees it to access ernmental used not placement gate does that “the Flickingers knew cent land. The federal conclusively character of the establish the public employees keeping were the road A public permissive use as and nonadverse. sought good repair. in users the Some words, may for gate, in other be erected road; Flickingers’ permission to use the public of purposes other than obstruction most did not. Id. at 979-80. in The evidence Flick- travel.” Id. at 981. of inger primary purpose the Occasionally Flickingers had to tell showed the who used they camped gate to benefit a rancher property if the was users to leave their trash, pasture for his they Flickinger’s property never interfered on it or left but (1966) merges statutory prescriptive "wagon” P.2d 782 4. existed as a Prior road road, consisting just right requirements two dirt tracks. In period into a and the claim of to a road in order to the road was converted dirt only showing public requires use for test that Flickinger, 687 P.2d at allow vehicular access. twenty year period, we overrule that case as 978 n. 2. Flickinger. contrary to our decision in holding Shively v. 5. To the extent that our Comm’rs, Board of Pettit, Additionally, Flickingers ing prescriptive period. since the Simon

livestock. (Colo.1984). 1299, 1303 any attempt to lock the never made property prior to public from their only by a evidence of maintenance purpose gate of the was to concluded that entity in the record before the trial nearby highway, away from a keep livestock court was that the Colorado Division of Flickingers’ keep off not to Land Mined Reclamation had entered the land. Id. McIntyre property to build a boardwalk over evidence existed to held that sufficient a washed out section of the route to the old Flickingers’ had used the find that quarry safety purposes. marble site for This right and in a manner road “under a claim entry permission occurred written of the property interests” since at [their] adverse to McIntyres’ interest, predecessor in with the The evidence showed least 1953. Id. agreement expressly providing that the land- character asserted rights by granting owner waived no access incorporated it of the road when it into the permission to the State. (1) system. county road addition: the absence of overt action county received state funds to maintain the County indicating Gunnison its intention to (2) road; public continuously entered the footpath along tramway treat the old property and used the road for recreational route as a the trial court and the lands; adjacent purposes as well as to access by conflating court of erred the ad- Flickingers had “actual knowl- versity right requirements claim edge gener- of the road use establishment of a prescrip- Hence, ally acquiesced in it.” Id. at 981. 43-2-201(l)(c) pursuant to section into requirement both the and the single twenty criteria of use for the a claim of were met in year statutory period. applied Neither court regard prescriptive right to a Flickinger all of requirements; partic- Flickingers’ property. ular, right requirement. They the claim of adversity requirement. examined Prescriptive D. No Road Right in But, this Case contemporary our case law contains a 43-2-201(l)(c), reading restrictive of section Although McIntyre the route across the requiring twenty year supported once vehicular travel on road in a manner adverse to the landowner tramway eight route from five to feet right. and under a In Colora- width, places, in some to twelve to fifteen do, parallel two developed lines of cases have width, places, feet in other the use the from our courts. One line of cases addresses during made of this route the statuto- adversity. The other line ry twenty year period footpath. was for a A addresses claim of claim This scrap heap previous from marble marble supported by must be evidence of an overt operations along quarrying the route re- put act or acts that the landowner on notice quires pile; walkers to over the “scramble” to a road across exist, other obstacles to vehicular travel such property. require- We now discuss both posts. as fences and preface analysis ments but our with a discus- during Because the the statu- sion about dedication cases. tory twenty year period footpath, particularly perti- our decision Simon is 1. Dedication and Adverse Possession nent. taken Gunnison must have Distinguished action, some overt claim of formal or informal, giving public prescriptive notice to the landowner of We first addressed 458, demonstrating rights People, and in Starr v. 17 30 P. Colo. (1892). Starr, that it footpath question considered the across the 64 In was wheth- road, McIntyre public highway land to be a for exam- er the road at issue was a at ple, by performing including maintenance or the time the action was instituted. Id. at 459, footpath system on its P. at road dur- 30 65. We addressed two alterna-

4H repeated posses- we the rules dedication set forth and adverse dedication tive theories: Mitchell, facts of the Depending on the Id. in but —because of a sion. Starr case, factors could raise an several particular dispute factual as to whether the road the on the landowner’s implication of dedication sought actually land in claimants crossed the public had including the fact that part, a question did not reach conclusion re- —we length of for a considerable used the road garding requirements creating pub- for a objection by the landowner. without time simply private property. lic road on Id. We a consid- Use of the road show, observed that the evidence must objection by length of time without erable certainty, oc- reasonable that travel may increase the the owner of the land controversy. at curred the land Id. be, evidence, if there weight of the 498, P. at 271. or declarations of arising from acts indicating his intent to dedicate. owner Adversity use, Right and Claim of without such acts or decla-

But mere rations, period time corre- unless for a 1931, formally recognized we statutory limitation of real sponding to the must make some actions, held sufficient to vest cannot be prescriptive a order establish easem by prescrip- public, in the as the easement Mayer Valley ent.6 v. San Luis Land & tion. Co., 23, 26, Cattle 90 Colo. we at P. at 65. At that time Id. (1931). However, fully we did not address for the statu- that use indicated this until 1984 when we dis to create a tory time was itself sufficient public prescriptive rights generally cussed prescriptive right. (Colo.1984). Pettit, Simon v. the issue of dedication We revisited satisfy of section order City Den- implied dedication Mitchell 2-201(1)(c), 43- must use a (1904). There, ver, P. we 33 Colo. “adversely, right, under a claim of that, private road to reiterated order for statutory period interruption without for the dedication, highway by become twenty years, knows of and the landowner intent for landowner must manifest some object to Id. at 1302. left room for a future case but does not the use.” outcome. We involving possession. We concluded quote appears began adverse discuss- This before fell short of the evidence in Mitchell ing a “road” in At the definition of Simon. establishing a dedication or point opinion, we were first ex- facts not show easement because the did necessary plaining the elements acquiescence by the landowner or ad- either published a prescriptive right. Simon was possession. verse Flickinger. As demonstrated week after Denver, city of its That the or some phrases, we the commas in between the municipal corporations, six or constituent clearly and claim of intended years graded trial this seven before the requirements for a separate constitute street, up signposts at the intersection put right. pub- held that public prescriptive We streets, adjoining placed there- lic or the inclusion maintenance thereof, not, under the on the names system map, of the road on a facts, acquiescence evidence of sufficient strong in favor of would serve as alleged in this assertion of the owners public prescriptive right. Id. at 1303. public ownership, sufficient to make out arising posses- ownership an from adverse us, court now before Prior the case sion. the claim of has addressed 78 P. at 687. adversity require- well as the as Bamberger, 32 P.3d ment. See in Lieber v. next addressed the issue Littlefield (1905). Here, Littlefield, the court (Colo.App.2001). In People, P. 270 A, attach, quirements public prescriptive Appendix survey of cases 6. We jurisdictions regarding the re- decided in other recorded, county’s recognized improperly that a use and the resolution was appeals of delivery might court held the landowner to this notice of a mail route of a maintenance (“Section 43-2-201(l)(c) easement, public claim. up- Id. prescriptive but qualify require public does not use be based on determination court’s held the trial properly color of title or recorded resolu- support case did not this [resolution tions. The to illustrate served] at 620. In Alexander v. Id. conclusion. adverse, open, notice of and notorious use McClellan, (Colo.App.2002), public.”). affirmed the trial court or- appeals of court prescriptive right in the public finding a der public While a claim of is a support at 105. In of its Id. at issue. road necessary separate for es appeals of cited to evi- court holding, the tablishing public to a prescriptive public showing continuous use dence road, right requirement the claim of is inte road for at least of maintenance grally adversity require intertwined with the period. twenty year prescriptive statutory Sporadic ment. use of the road is not testified to the witnesses Several enough adversity put establish [pub- of and the [the road] use continuous public owner on notice of a twenty it for over maintenance lic] Anderson, right. Turner v. 130 Colo. landowner] even testified that years. [The (1954). Turner, 274 P.2d 972 In we held road]; of traffic on he [the aware he was occasional use of the road members that, prior acquiring the dis- admitted prescrip did not rise to the level of a approximately he saw ten puted property, (“a 278-79, right. tive Id. at 274 P.2d at 974 week, regular per in addition to school cars prescriptive right to ... [a] the use traffic, using [the road]. bus evidence, not established because Id. at 104. irregular, the use of said road was infre quent, sporadic, permissive and far more Kobobel, County In Board Comm’rs adverse.”). than (Colo.App.2002), the claimants 74 P.3d 401 very evidence of presented little use gate While evidence fence road, and no evidence of a gives strong the road rise to a indication that therefore, by prescrip no right, any public permissive, use of the road is their tion Id. at 404-05. existed. State provide existence does not the landowner Cyphers, (Colo.App.2003), 74 P.3d 447 presumption with a conclusive use appeals court of addressed both the issue of permissive. Mayer Valley v. San Luis right. Affirming and claim of Co., Land & Cattle holding public pres trial in favor of a court’s (1931), kept gates the landowners unlocked criptive right, the court of deferred on the road at issue. When the landowners findings to the trial court’s of fact of continu eventually gates, locked the the claimant use of ous the road brought seeking an action to have the road permission. without the landowner’s Id. public highway pursuant declared a to section 2-201(1)(c). W.H.I., 24-26, In Board Comm’rs v. 43- at Id. 5 P.2d at (10th Inc., Cir.1993), proof 992 F.2d 1061 874-75. observed that Tenth mere statutory period Circuit focused on whether the use of the land for the acquired prescriptive right pursu- to a road does not rise the level of a 43-2-201(l)(c). Although ant to Addressing section Id. P.2d at 875. issue, sparse adversity, record was on the evidence did we held that obstructing gates exist that the used the road for the free travel with or fences requisite ordinarily period prevent time. Id. at 1065. The will from ac quiring highway prescription. By evidence also showed that the Board of constructing gate had enacted a resolu- across a a landown Commissioners declaring conveys message an intention to claim the road er the clear prescriptive period as a use of that road is with the landowner’s road. ruled, began, permission only; is not so the court when the Board and the passed Although adverse. its resolution. Id. at 1066.

413 Fleenor, 136, property necessary 365 tion for the interest 148 Colo. v. Martino (1961), require- the road. 247 we addressed P.2d plainly public held that

ment of Assembly The General has encour period is not alone prescriptive use for aged public landowners to allow use of then- public prescriptive to establish sufficient land; turn, guarded against it has land relatives, friends, Claimants, their losing property rights their owners when neighbors had used employees, and southern 33-41-103, allowing § such use. See 9 forty-two years with- for more than the road (2003) liability (limiting C.R.S. landowner objection of the landowners. Be- out the land). public private use of The vacant land gates placed three wire cause the landowners exception legislative also demonstrates this travel, road, obstructing thus ren- across the policy, as we discussed in Simon. Travel only, permissive public no dering the use permissive over vacant land is deemed prescriptive right established. Id. at was predicate prescrip cannot serve as the 141-42, P.2d at 250. right: tive Jones, Similarly, Lang v. unoccupied Where the land is vacant and (1976), road was consistent- 552 P.2d 497 public and remains free to use and travel by gate, although gate ly blocked until circumstances induce the owner to at 499. The not locked. Id. at 552 P.2d it, it, enclose the mere travel with- across public’s permissive access was because where objection owners, out from the does not road, along gates obstruct free travel public acquire public to enable unlocked, gates if the are the use of the even highway or over same. Such use Nevertheless, road is not adverse. unoccupied of vacant and land existence of a Flickinger, we said that the it, period travel over even after the gate give pre- to a conclusive did not rise twenty years, regarded merely per- as a There, sumption permissive the land- use. missive use. in, gate keep livestock owners used the Pettit, (Colo. v. Simon keep than out. Board rather of 1984). 18-4-201(3), § See also C.R.S. Flickinger, v. Comm’rs (2003); People Schafer, (Colo.1984). (Colo.1997). Hall, (Colo.App. In Walter v. 940 P.2d 991 appeals rulings The trial court and court of 1996), our rea the court of followed us, upheld, in the case now before if would soning Flickinger gate of a contrary have the to Colorado effect — conclusive evidence that use was is not discouraging private landowners policy—of Similarly, in permissive. Id. at 995. Little (1) allowing: to cross then- from (Colo.App. Bamberger, purposes to reach other field land for recreational 2001), appeals again held that the court of (2) lands; private or without this itself, fence, in and of does not evidence of consequences causing adverse necessarily prove permissive Id. at 620. use. property interests and title of the landowner. statutory Consistent with this Statutory Policy Public entity policy, re us, 43-2-201(l)(c), reviewing quirement under Section rec the case before statutory ognized public policy. look to the The Simon and establishes also 2—201(1)(c) statutory policy legislative a restrictive towards intent section 43— entity prescriptive of a road claims. The establishment adverse prescription is a narrow alternative to the claimant establish entity twenty year prescriptive period other means a has for use for the available (1) or actions that establishing a which include: ex and take some overt action notice of the press implied give property dedication of the road to the owner (2) owner; purchase in order for the claim entity; running right-of-way by period of a to commence under section 43-2-201(1)(c). strongest payment just compensa- indicator condemnation and partment is the inclusion of the of Mined Land Reclamation en- claim county’s system property to construct a boardwalk county road and the tered road over a washed out section of the trail for public maintaining funds for expenditure safety purposes. But this work occurred road.7 property permission owner’s with the under right Accordingly, on the claim of agreement an between the State of Colorado issue, provide must the claimant property and the owner. reasonably diligent would landowner that a The uncontested facts of record on sum- public’s right claim of notice of the have had mary judgment do not demonstrate Gunnison evidence must include the road. The County’s right public claim of for a road on part public act on the of the some overt McIntyre property that commenced the jurisdic in entity responsible for roads twenty year running prescriptive peri- public it the road a road. tion that considers od; thus, ruling trial court erred prescriptive commences the This notification against prescriptive period had run these it, prescriptive period period; without summary property owners. The trial court’s begins. never judgment quiet order and title decree provide notice of An overt act sufficient County favor of Gunnison must be vacated public claim of could include regard McIntyre property. to the Because number of actions. In a state such as Colo- property appears no other owner to contest rado, frequent occur- where snowfall is a quiet the trial court’s title decree in favor of rence, plowing might constitute an roads County, presume these claims Including public a road on a road overt act. County, were settled favor of the or that delivery system map, using the road for mail private property impliedly the other owners buses, expending public funds for or school tramway right-of-way dedicated the old road, improvement or the maintenance property County. across their to the signage indicating a or posting drainage systems for the road installing III. putting act an landowner could each be Accordingly, judgment we reverse the to the on notice of the the court of and remand this case for requirements the other road. As with proceedings opin- further consistent with this by prescription, road establishing a ion. entity proof by has the a burden of the evidence to demon- preponderance dissents, Justice MARTINEZ and Chief way that it considered the across the strate joins Justice MULLARKEY in the dissent. a private property road. APPENDIX A us, evidence of In the case before surveyed to access across the any public claim We have the case law from the highest many is that the De- McIntyre Colorado courts states and found that surrounding right. County Friendly Many Colorado of the states have live Board Comm’rs v. definitively Specifically, Co., 342, addressed this issue. Haven Ranch 32 N.M. 257 P. 998 required that the board of commis- Idaho has (1927). year, Wyoming Supreme Last Court lay out and record road in order to sioners "bring held that a claimant must home” notice of Cox, highway. Coxv. 84 Idaho establish 513, landowner, simply provid an adverse claim to a (1962). requires Kansas some ing evidence that the landowners were aware of action, informal, either formal or official use and could see road from improvement of a road as a cites maintenance prescrip their home did not suffice to establish a strong gained that the has indicator Forbes, 241, right. Yeager tive v. prescriptive right. Kratina v. Board of Moreover, (Wyo.2003). both Illinois and Mis Comm’rs, 499, (1976). 219 Kan. 548 P.2d 1232 souri, adopted from whom we have constitution Very recently, Supreme Montana Court held provisions, al are in accord with the acquired Roper, See v. Swinford expended where funds had been for the (1945); 389 Ill. 59 N.E.2d 863 O’Connell v. Russell, maintenance of the road. Smith Co., Chicago Terminal R.R. 184 Ill. (2003). New Mont. Mexico Transfer (1900); Terry City Indepen 56 N.E. 355 recognizes public as evi- maintenance of dence, (Mo.1965). prescrip- 388 S.W.2d 769 has established a dence that public prescrip- ed to show establishment of regarding differ cases conclusive). right although tive was not prescriptive right. Comm’rs, Kratina v. Board required following the courts In the cases (public Kan. adversity. only showing action, take some official either formal or Walker, 186 Ala. 65 So. 170 Carter v. informal, maintaining improving such as (1914) (recognizing that continuous adverse prescrip- order to establish a public sufficient to establish a use right). tive right). prescriptive Cummings Fleming County Sportsmen’s v. 328, 331, Toomey, 232 Ind. 111 v. Swindler Club, Inc., 163, (Ky.1972) 477 167 S.W.2d (1953) (“if 715, roadway here N.E.2d 716 (public use must be “so manifest as to afford to all who question is free and common owner.”). ordinarily prudent notice to an it, it been so have occasion to use has Benedict, 8, 143 Downing Ky. v. 147 S.W. 756 more, twenty years it period used for a of or (1912) (requiring public authority of exercise statute.”). public highway ais public prescriptive in order to establish Canterbury, Mahoney [150 v. Town N.H. of right). (N.H.2003) (requiring only 834 A.2d 227 148] Dennistown, v. Comber Plantation 398 adversity public to establish (Me.1979) (claim right A.2d 376 is neces- right). prescriptive sary public prescriptive right establish (1902) Poat, 439, Earle v. 63 41 S.E. 525 S.C. sporadic public but instances of maintenance (reasoning that because all landowners hold right). will not serve to create such subject right their land to the of the state Searsmont, Mackenna v. Town 349 A.2d road, public take some of that land for (Me.1976) (although public 760 claim of may presumption claim of create required public prescriptive to establish right). right, formally road need not be dedicated or Blanchard, 234, A. Gore v. 96 Vt. 118 888 out). laid (1922) (recognizing general that if rule use is Co., 330, Sprow v. Boston & A.R. 163 Mass. notorious, open presumed it be ad will (1895) (public 39 N.E. 1024 must show that right). a claim of verse and under knowledge landowner had or reason to be here, applicable The cases we find based lieve that under a claim used on our discussion in Simon and right). include both adverse use and a 299, Fry, Bain v. 352 Mich. 89 485 N.W.2d entity claim of (1958) (use open, must be so hostile and Steelhammer, 429, Nelms v. 225 Ark. 283 provide notorious as to notice to the landown- (1955) (requiring public S.W.2d 118 denied). er that title to the land is allowing slight path deviation in but 587, Trowbridge Wagoner, Mich. v. Van 296 circumstances). of travel certain (1941) (public 296 N.W. 689 use must be (1962) Cox, 513, v. 84 Idaho Cox accompanied by by public some act authori- (requiring lay of commissioners to out board give ties sufficient to landowner notice that and record road in order to establish a denied). title to the land is prescriptive right). Emery, South Branch Ranch Co. v. 191 340, Roper, v. Ill. (1916) (mere 389 59 N.E.2d 188, Mich. 157 N.W. 419 Swinford (1945) (requiring 863 both public prescriptive public will not establish a noting mainte- right, some act of control is neces- strong nance is a indicator of a claim of sary). right). Supervisors, Ladner v. Board 793 So.2d (Miss.2001) 637, Chicago (public O’Connell v. Terminal 639 must show “exer- Transfer (1900) Co., roadway ques-

R.R. Ill. 184 56 N.E. 355 tion of dominion over the (evidence tion.”). maintenance on land tend-

416 money road and landowners expend on County, 196 Miss. Armstrong Itawamba v. pres- property, public (1944) paid all times taxes (public authorities 16 So.2d arise). not criptive did road, such jurisdiction over the must exercise public expense). overseeing upkeep at its Highways, 180 Dep’t W.Va. Cramer (1988) (requiring adverse use 375 S.E.2d 568 Reid, 86 Miss. So. Wills v. recognition that road is as official as well (some moneys exer- expenditure of public mainte- public, which could include necessary road is public power over a cise of recognition). nance or an order of to establish in order right). Woolwine, 282, 21 S.E. Boyd v. 40 W.Va. (1895) (in to constitute order City Independence, 388 S.W.2d Terry v. accepted must have court (where (Mo.1965) city possession took road). way recognized such some it, it, pub- area, expended oiled graded Damitz, exercised do- maintaining it and lic funds in 81 Wis. N.W. Witter (1892) it, acquired prescriptive (public and maintenance construction minion over statutory period time highway for of right). highway by prescription). constituted a Russell, 80 P.3d 431 336] Mont. [318 Smith v. Forbes, 241, (Wyo. (Mont.2003) Yeager v. 78 P.3d 256 (public acquired prescriptive 2003) (claimants “bring home” notice of must expended public funds had been right where landowners). road). adverse claim for maintenance Patrick, 130, Wyo. v. 18 Board Comm’rs Hunt, v. Mont. [276 229] Ranch Co. Swandal of (1910) authority as- (public 107 P. must (evidence 748 (Mont.1996) 915 P.2d 840 jurisdiction or over sume some sort of control had declared a road on county commissioner a road in order for it to become finding that supported a landowner’s ranch by prescription). county’s knowledge of the had the landowner road). to the adverse claim dissenting: Justice MARTINEZ Friendly Ha- County Comm’rs Board of I. 342, Co., P. 998 N.M. 257 ven Ranch 32 (1927) maintenance of (recognizing public majority grave I errors find two gained a public has First, road as evidence analysis me to dissent. which cause prescriptive right). troublesome, majority’s in- and most is the an into the sertion of additional Utrecht, 420, 121 N.Y. Speir v. New Town of public highway. prescription test for of (1890) pub- proof that (requiring 24 N.E. 692 Second, majority conflates the test for recognized, kept way lic in some authorities by adverse whether road is established for it to adopted road in order repair, or possession the determination of whether with by prescription). public road become a I route in the first instance. Georgia-Pacific Corp., Doyle Milling v.Co. agree majority’s decision to cannot (1970) (public 271, 256 Or. government add an additional of apprise landowner of nature adequately must given prescription action the test knows a of so landowner of claim legislature changed has not fact that the the land unless will burden servitude years. Further- statute over one hundred prevent action to proper takes the landowner more, majority’s analysis I find it). question particu- of whether a the threshold 464, Lister, Pa. 55 A. 23 Donohugh prescription lar route is a road under the (1903)(where authority paved and had incorrectly pre- includes elements statute times, acquired repaved road several respectfully scription. I dissent. though right even landowner road). II. paid curbing Assembly enacted the section County, 55 The General Pierce Wash. Scheller v. (where times, (1909) this case arises 1893. Ch. county, at refused under which P. 277 I, First, Laws see. 1893 Colo. Sess. 435. The the terms “use under a claim of changed not the law since legislature right” has and “adverse synonymous. use” are following that time. “The are declared to be majority contends that we have devel- (c) pri- ... All public highways roads over oped cases,” parallel “two lines one which adversely vate lands that have been used right” addresses “claim of and the other objection on interruption part without “adversity”. Maj. which addresses Op. at twenty of the owners of such lands for con- 410. the more reading obvious 2—201(l)(c), years.” § secutive C.R.S. previous our cases is that we have used the 43— (2003). This section codified the common law right” only of, term “claim of explanation definitively established that all roads on with, synonymously and thus the term “ad- adversely private lands that have been used example, verse use.” For in Lieber v. Peo- twenty years, for more than without inter- 493, 499, ple, (1905), 33 Colo. 81 P. owner, objection by ruption become give we stated that to a road a charac- public highways. Bd. Comm’rs v. 43-2-201(l)(c) ter the use under section (Colo.1984). (that is, have been “adverse under a claim of right).” Mayer Valley See also v. San Luis interpreted this We have section our Co., 23, 26, Land & Cattle previous a party cases and have held that (1931). Thus, both these terms seeking private to establish road across type characterize the required public highway aas must demon- prescription before a claim of can be estab- strate: lished: the use must be hostile to the owner’s members of the must have used rights. the road under claim and in a proper- manner adverse to the landowner’s The case law in Colorado illustrates that interest; ty we have used these synonymously terms public the must have used the road single requirement describe the of adverse interruption statutory peri- without for the by public. Cyphers, use the In State v. 74 twenty years; od of (Colo.App.2003), example, the (3) the landowner must have had actual or ranchers’, appeals court of found that hunt- implied knowledge use of ers’, sightseers’, explorers’ oil use of the objection the road and made no to such supported finding of adverse use. use. require right by The court did not a claim of Thus, merely Id. our case law outlines what any public entity, pointing out that is not “[i]t adverse, the statute dictates: there must be necessary governmental that a subdivision uninterrupted twenty years, use for with the maintain the road to retain its status as a knowledge. owner’s Thus, public highway.” Id. at 450. the court disagree majority’s analysis clearly I with appeals require anything the did not application majority by this test because the more than adverse use to es- attempts separate public highway by prescription. our tablish a right Similarly, the use a claim of Bamberger, must be “under in 32 P.3d Littlefield in a (Colo.App.2001), appeals manner adverse” into two distinct re- the court of quirements. I not prescriptive right As do find that we have held that a had not been ever stated that use under a claim of is established because there was not adverse use, any by public. different than adverse I cannot use The court concluded that nature, agree majority’s analysis. with “sporadic More- the use was rather than over, majority’s pattern general further part assertion that of a use.” Id. requirement applies only this additional to The court made no mention of a county is I entities untenable. find the ma- that the had to make some overt act jority’s departure previous evidencing from our case that the use was under a claim of law, legislature only despite right, holding the fact that has not that there was not a suffi- changed showing the statute over one hundred cient of adverse use. Id. The court years, authority right” properly an exercise of more has used the term “claim of Assembly. place left to the General of adverse use. Bd. of (Colo. Kobobel, expressed by ‘open noto Comm’rs continuity requirements.” that case the rious’ and court App.2002). Thus, question posed by not the require use was over the real only that found therefore ment that the entire road and use be adverse under length of Id. The claim of is highway was not established. whether used permission lack of action land without and in a manner that considered the court never entity illustrating that the was hostile to true owner. This by thus evidence merely using the terms adverse then serves to that the illustrate court was asserting ownership property— a claim of inter its over the use under use and prescription. that al These cases confirm the backbone See changeably. W.H.I., Inc., involve action though facts in some cases Bd. Comm’rs v. (10th Cir.1993). entity, we have never held F.2d Action county separate certainly part is a or additional could public action be such merely used to use. requirement. Such action serves as evidence show an adverse How sum, ever, illustrating requisite use. action adverse is not use, only showing (County’s whether required adverse use. See id. we have entity, general or a be actions “serve to illustrate notice of adverse, open, pub interest. adverse to the landowner’s and notorious lic.”). have further defined adverse as visible, exclusive, “actual, Mayer, Although recognizing hostile.” that “the claim of right requirement integrally This definition 90 Colo. at at 875. is intertwined Maj. both definitions of “ad requirement,” Op. is consistent with with majority right” argues and “claim of stated in that we verse use” still have actually Dictionary. separate require “Adverse use” Black’s Law established two permis showing as “use without license or ments for a adverse use. defined (6th Dictionary majority Law Mayer, formally Black’s states that in “we sion.” ed.1990). recognized further “Adverse” is defined must make some specific regard to use of land: use of land order establish a “adverse, owner, against Maj. Op. if it is not made easement.” at 411. him, to in open only in is and notori that subordination case we stated doctrine,” land, right The “claim of in must have “adversely ous.” Id. used the possession, Mayer, defined as regard right.” to adverse is a under claim or color of 90 owner, 26, Furthermore, possession “in as at 5 claimant intent Colo. P.2d at 874. we own, equate the land as his or her and not on in that to claim went case to the terms: the is, recognition in of or to use must be under a subordination record adverse “that claim explain 26, at right.” Although title owner.” Id. 248. Both terms Id. at P.2d at 875. 5 Mayer supports must and not in proposition the use be hostile that the use owner, property to the subordination record owner. must be adverse to the thus evidenc ing ownership, says a claim of that case short, explain, to these terms all serve nothing showing indicate that differentiate, permis use from and adverse adverse use would be different from that important sive use. This distinction is be showing a claim of cause if that the use the evidence shows permissive, Bolstering point right” there can no that “claim of be 26, right. Mayer, merely way saying 5 P.2d at another 90 Colo. at “adverse use” Property, explained requirements As our outline of Restatement estab- right” public highway private property “claim of does mean that the user lish a across not title, Flickinger. claim entitlement or sometimes in There we outlined re- three asserted, first, mistakenly merely that quirements. but Under we stated if the public user must not behave as no adverse use “members of must have used the (Third) being in a were asserted. Restatement road under claim of and manner (2000). Property: § cmt. f to the Servitudes 2.16 adverse landowner’s inter- Flickinger, Although “Claim right” “adds little to est.” 687 P.2d at 980. therefore

419 Sales, combining majority points right.” Hodgins to the “and” under a claim of 225, 969, (2003). right and in a manner adverse in claim of 139 Idaho 76 P.3d separating a comma claim of explain court went on to that these two terms Pettit, and adverse Simon use, synonymous: are “adverse also referred (Colo.1984),1 persua- I find more to as hostile use or use under a claim of initially manner in which we laid out sive the 975; right.” Id. at see also Williams v. requirements Flickinger. out- those Harrsch, 297 Or. requirements and lined three numbered (“To public roadway by establish a prescrip- accordingly. them Had we intended to re- must be adverse or under a elements, I quire four believe that we would merely by permission claim of and not so, have done or at least noted the three landowner.”). Although some other subparts. im- included More action, require states have laws which official portantly, analyze we did not the terms use support nothing these cases more than a under and adverse use differ- public policy argument change that such a Instead, ently separate any way. them See, e.g., should made. be Bd. Comm’rs v. disposed prong we of the first of the test Co., Friendly Haven Ranch 32 N.M. sentences, three and we moved on to discuss (1927) (Statute P. defined Thus, plaintiffs constitutional claims. I highways as all roads dedicated to majority’s reaching have trouble conclu- “recognized corpo- and maintained previously sion that we have established any county.”). rate authorities of Colorado’s more than the three elements listed in Flick- presently law does not include such re- inger. quirement any change to our law is supports analysis. Law in other states this exclusively province within legisla- Contrary majority’s to the assertion ture. many require cases both Second, majority only pub- states that 414-416, Maj. right,” Op. subject lic entities are to this additional re- A, clearly Appendix the Restatement states quirement. Although majority points majority require gov- of states do not language discussing require- different public high- ernmental action to establish a private prescriptive ments for (Third) way by prescription.2 Restatement rights, we have never held entities to (2000). Property: § Servitudes 2.18 cmt. f private different standard than individuals. adopt approach States that do not this base example, Shively For v. Board statutory language their conclusion on re- Commissioners, 353, 357, quiring governmental example, action. For (1966), analyzed sufficiency Supreme recognized has Court Idaho support finding of evidence to of use that adverse use and under a claim of use right; under a claim of we stated that there synonymous. Supreme are The Idaho presumption a requirements Court outlined its which that the use is adverse includ- prescribed ed one that the use must “adverse and when it has made for the be been (2000). Flickinger, erty: § we 1. In stated that the use must be Servitudes 2.18 cmt. f The lost "under a claim of and in a manner adverse grant theory reasons that a landowner would not Flickinger, to the landowner’s interest.” acquiesce expressly of land without Simon, P.2d at 980. In on the basis which was not decided Kratina, granting However, right. such a 548 P.2d at 1235. prescriptive rights, we of noted the grant as there can be no without a requirements prescription of and stated that the grantee, adopt lost-grant definite courts that the "adversely, a must use road under a claim theory problem face the that the is an Simon, Thus, right.” at of 687 P.2d 1302. we (Third) grantee. Prop- Restatement of indefinite have used both the a word "and” and comma to (2000). erty: § Servitudes 2.18 cmt. f Most separate descriptions these two of adverse use. legal sidestepped courts have this fiction and finding adopt lost-grant theory public by 2. States that of ad- allowed a servitude an for possession extending prescrip- verse tion to the have trouble implied general public. dedication to the Id. Woodmont, public. See Thus, Mihalczo majority American courts have "the of (1978); 175 Conn. 400 A.2d 272-73 permitted acquisition by long- of servitudes Comm'rs, Kratina v. Bd. 219 Kan. continued use." Id. (1976); (Third) Prop- P.2d 1232 Restatement case, say private rights prescriptive or of time.3 went on amount We respect presump- showing with then denied the for lack of a “rule is no different gained by public under rights [sec- use was a claim of tive that the under 357-58, 411 P.2d short, at at required 43-2-201].” Id. have more of we never Thus, equate a claim not did we of public private gain than a a individual possession, specifically adverse we right with prescriptive right. that the test of same stated majority’s require an The desire to overt private for entities. part of public act on the entities before a Furthermore, language although our var- can be established also confuses test explanation for ies in our of adverse with the determination right, prescriptive the substance a a route a road whether constitutes requirements is In the context of the same. place. As I first feel that the distinction easement, we private prescriptive have a clarify may my these two between issues if that the is established stated easement disagreement majority, I will dis- 2) “1) notorious, open continued use is: or cuss that issue next. pres- interruption effective

without 3) a) either criptive period, the use was III. b) attempted, pursuant to an but adverse or question in We have stated that an initial a grant.” Taylor, 71 ineffective Lobato v. rights prescriptive case is whether the route (Colo.2002) (citing, e.g., Restatement question comes within the definition of a 2.16). (Third) 2.17, require- Property These may “road” so that it be declared ments mirror those that we have outlined for Simon, highway. 1302. The public highway by the establishment of a majority appears to initial deter- combine the First, open prescription. the use must be question mination of route in whether the This is identical to our notorious. element “road,” could even be declared a so as to public prescriptive 43-2-201(l)(c) apply, have section with the implied actual or the landowner have inquiry public highway of whether a was knowledge use. by prescription. majority established The at 980. landowner could not merely roadway concludes that were knowledge have such if the use not majority footpath. then ar- Second, open the use or notorious. gues footpath that in order into to turn a period. continue for the prescriptive This public highway, pre- all of the elements required we have mirrors what scription must be I find established. As must continue use—the pre- the statute and all of the elements Third, statutory period twenty years. Id. scription apply do not unless the route in private prescriptive in the context of a ease- question is first determined to be I ment, we stated use must be adverse disagree majority’s analysis. with the pursuant attempted to an but ineffective just grant. Again, required generic adverse use The word “road” “is a term and rights. every character; ways as we have for includes overland use, it, scope given depending have in either to be never found adverse majority's Flickinger showing right” by separate 3. The over of a "claim of assertion problematic entity. Shively right” ruled is for two reasons. Such a does not "claim First, Flickinger Shively approvingly. presumption quotes presumption; fall under the Specifically, says: party relying only Flickinger, Flickinger adversity. to P.2d "A refers at Colo, 980; 43-2-201(l)(c) Shively, presumption section aided a at 411 P.2d at 784. is Yet, gone employing presumption that 'the character use is adverse no case has where is a such use shown to have been made a on to examine whether there was claim prescribed period right. Consequently, any reference to of time.’" “claim added) (emphasis right” requirement (quoting Shively, P.2d at as a distinct from 784). majori impor necessarily 159 Colo. at arises time in the 411 P.2d at for the first More tantly, subtly, presump ty’s opinion but more our traditional in this case. Because this is first showing require it in which tion use is adverse when continues instance we period years) right,” prescribed (twenty opinion rather for the is further "claim of it is this than required Flickinger Shively. evidence that we have never before overrules appears.” (quoting governing pub- it Id. “road” as used in the statute context which Sullivan, 512, 518, highway prescription lic Hale resolves wheth- (1961)). Thus, the context deter- applies. er the statute That determination is the term should have a broad separate question mines whether from distinct interpretation. or a narrow Id. whether the has established a highway by prescription. majority If the Simon, things in we considered three truly believes the route at issue here is not a footpaths that cut deciding whether urban road, appropriate it would more be through a vacant lot could constitute roads majority to resolve the case on that issue provisions thus come under the of sec- Simon, alone as we did in and leave the law 43-2-201(l)(c) prescriptive high- public prescription unaltered. First, way. at the intention of the we looked legisla- that when the legislature and decided IV. adopted it not intend for ture the statute did footpaths eighteen-inch urban to be consid- sum, disagree majority’s I with the Second, public highways. ered Id. at 1302. public high- that in order for a we addressed whether there was evi- way by prescription, to be established an city adopted footpaths dence that the had governmental entity official must make some Third, as roads. Id. at 1303. we discussed majority formal action which the calls a public policy rigidly applying the behind right.” “claim of I believe that we have such shortcuts. Id. at 1303- statute include use, required only showing of adverse factors, Applying all of these we held synonymous which is use under claim footpaths question did not come Thus, majority’s I find under the definition of a road so as to come wholly new to our test for 43-2-201(l)(c). under section Id. at 1304. prescription as it has stood for over one Thus, stated, we we did not need to address Furthermore, years. hundred I because also the additional issue discussed the court of disagree majority’s analysis with the acquired appeals: pres- whether the road, question the route in I whether criptive rights. Id. ap- trial believe the court and the court of peals correctly. According- decided this case therefore that the initial Simon illustrates ly, respectfully I dissent. determination of whether a route is a 43-2-201(l)(c), implicating thus section is dif- say I am authorized to that Chief Justice question from ferent of whether or not a joins in MULLARKEY this dissent. public highway is under section established 43-2-201(l)(c). Although we considered evi- city

dence in that ease of whether the had streets,

accepted paths we did

inso the context of whether the road at issue

fell under the definition of road so as to prescription apply.

enable the statute to Colorado, The PEOPLE of the State of Furthermore, specifically recognized Plaintiff-Appellant, 43-2-201(l)(c) require “section does not city expend funds or otherwise demon- Keith Paxton ALLISON Nicole willingness accept highways strate its es- Allison, Monique Defendants- by prescription.” tablished Id. 1303. We Appelles. strongly stated that such evidence would in- path No. 03SA322. acquired dicate that a the status of public highway. those con- Colorado, Supreme Court siderations were made in the context of En Banc. footpaths whether the were roads so as to March 2—201(1)(c) apply. cause section 43— short, preliminary question whether a route comes under the term

Case Details

Case Name: McIntyre v. Board of County Commissioners

Court Name: Supreme Court of Colorado

Date Published: Mar 15, 2004

Citation: 86 P.3d 402

Docket Number: 02SC803

Court Abbreviation: Colo.