Lead Opinion
delivered the opinion of the court.
We granted certiorari in this case to review the court of appeals decision in Board of County Comm’rs v. McIntyre, No. 01CA2408,
I.
The petitioners, Kim and Steve McIntyre (McIntyres) own six mining claims near the Town of Marble in Gunnison County. They purchased their property from L.E. Schooley and Associates (Schooley) in 1994. Schooley had acquired the property by virtue of a tax deed in 1960; there is no evidence in the record of a deed in the chain of title that contains a dedication, reservation, or exception for a public road across the McIntyre property.
The McIntyre property includes a portion of an old electric tramway route that the Colorado Yule Marble Company operated to
In 1941 the Marble Company ceased operations. Marble from the quarry was used in building the Lincoln Memorial and the Tomb of the Unknown Soldier, among other notable public buildings in the United States; so the quarry site has significant historical and tourist value to the Town of Marble and Gunnison County. The public has traversed the approximately three-plus mile route from the Town of Marble to the quarry site since the 1940s by four wheel drive vehicle and footpath. Only a footpath exists across the McIntyre property because of a steep gradient that veers away from Yule Creek, severe erosion on sections of the footpath, and marble spoil piles which block vehicle access across the McIntyre lands.
William Bush, a Schooley partner, testified that approximately six to eight people per week walked the former tramway route across the McIntyre property from the 1960s to the 1990s to access the quarry site and public lands for recreation. Bush built and maintained a fence across the former tramway route on the McIntyre property for a short time in the early to mid 1960s. Some of these people who walked across the property during the 1960s to the 1990s requested permission; some did not. When requested, Bush always granted permission. Bush testified that he never saw any member of the public use a vehicle to cross the property.
In 1986, Schooley gave written permission to the Colorado Department of Mined Land Reclamation to enter the property and build a boardwalk over a washed out section of the route as part of a state mined land reclamation safety project on the Colorado Yule Marble Company quarry site. This agreement expressly provided that the landowner waived no rights by granting access permission to the State.
In the 1990s, the Colorado Yule Marble Company reopened the quarry. Avoiding that portion of the impassable old tramway route across the McIntyre property, the Marble Company cut a new road to access the quarry from the vehicle-passable portion of the old tramway route. Concerned about liability arising from the deteriorating footpath and wastes that walkers left on their property, the McIntyres closed the footpath across their property in the mid-90s.
At present a graveled road from Marble ends in a parking lot, located off of the McIntyre property, from which persons can take a private tour to the quarry site on a trail or the road that the quarry operators installed off of the McIntyre property in the 1990s. Foot access to the quarry’s vicinity is also available from the parking lot via Forest Service trails.
At no time during the prescriptive period from the 1960s to the 1990s the trial court found to exist in this case did Gunnison County include the footpath across the McIntyre property on its road and trail system, or perform any maintenance activity on the path. The uncontested evidence in the record, including testimony of Gunnison County officials, was that the County had never assumed “jurisdiction” over the trail on the McIntyre property during the prescriptive period.
However, when the McIntyres commenced excluding members of the public from their property, Gunnison County brought this action against them, seeking a declaratory judgment that the route across the McIntyre property is a public road pursuant to section 43 — 2—201(l)(c). Following evidentiary hearings, the trial court granted a preliminary injunction against the McIntyres in favor of the County, preventing them from barring members of the public from using the footpath.
The County amended its pleadings under C.R.C.P. 105 to quiet title against all property owners along the old tramway route from Marble. After further proceedings, the trial court entered a quiet title decree “for a public highway pursuant to C.R.S. 43-2-201(l)(c) dedicated to public uses under the jurisdiction of the Board of County Commissioners of the County of Gunnison, Colorado” for the entire length and width of the old tramway route, up to sixty feet in width. The court of appeals affirmed. No party to the quiet title action, other than the Mein-
Limiting our decision to the McIntyre property, we conclude that the trial court and court of appeals failed to properly apply the criteria of Board of County Comm’rs v. Flickinger,
II.
We hold that the county failed to meet the claim of right requirement of section 43-2-201(l)(c) for the establishment of a public road by prescription across the McIntyre property.
In conducting our review in this case, we recognize that a court may enter summary judgment when there is no disputed issue of material fact and the moving party is entitled to judgment as a matter of law. We review de novo an order granting summary judgment. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd.,
Our decision in this case reiterates that the claimant for a public road by prescription must demonstrate the following: (1) members of the public have used the road in a manner adverse to the landowner’s interest and under a claim of right; (2) the public has used the road, continuously, for twenty years; and (3) the landowner had actual or implied knowledge of the public’s use and made no objection to that use of the road.
We are concerned here with the claim of right requirement. To satisfy the claim of right requirement, the claimant must provide evidence that a reasonably diligent landowner would have had notice of the public’s intent to create a public right of way. The evidence must include some overt act on the part of the public entity responsible for public roads in the jurisdiction sufficient to give notice of the public’s claim of right. This notification to the landowners starts the prescriptive period; without such notice, the prescriptive period does not begin.
A. Private Prescription and Public Road Prescription Differentiated
The case before us commenced as an action against the McIntyres, then became a quiet title action between Gunnison County and all claimants pursuant to C.R.C.P. 105. This rule provides for complete adjudication of the rights of all parties who, when served, have the opportunity to adjudicate their claim of right to an interest in the real property. Board of County Comm’rs v. Timroth,
In the case before us, the trial court and the court of appeals ruled that twenty years of public use adverse to the property owner was itself sufficient to establish a public road by prescription under section 43-2-201(l)(c). These rulings make the requirements for private prescriptive rights and public prescriptive road rights the equivalent of each other. They are not.
In regard to private prescriptive rights, section 38-41-101(1), 10 C.R.S. (2003), provides that eighteen years of “adverse possession of any land shall be conclusive evidence of absolute ownership” in a case for recovery of title or possession by the prior owner of the real property. Section 38-41-103 provides, in addition, that a continuous claim of ownership under the color of a record conveyance or other instrument is “prima facie evidence of adverse possession” during the prescriptive period. Section 38-41-106 reduces the eighteen year period to seven years when the residence, occupancy, or possession of the adverse possessor is under color of title, in law or equity deducible of
Missing from the private prescription statutes is the requirement of section 43-2-201(1) that the claimant of a public road prescriptive right must demonstrate a claim of right and use adverse to the landowner for the twenty year prescriptive period. As set forth in our case law, the requirements of section 43-2-201(l)(c) are: (1) members of the public must have used the road under a claim of right and in a manner adverse to the landowner’s property interest; (2) the public must have used the road without interruption for the statutory period of twenty years; and (3) the landowner must have had actual knowledge of the public’s use of the road and made no objection to such use. Board of County Comm’rs v. Flickinger,
In contrast, a private prescriptive easement is established when the use is: “(1) open or notorious; (2) continued without effective interruption for [eighteen years]; and (3) the use was either (a) adverse or (b) pursuant to an attempted, but ineffective grant.” Lobato v. Taylor,
The Restatement (Third) of Property: Servitudes § 2.18 cmt. f (2002) recognizes that although, in general, the requirements for a public prescriptive easement are the same as those for a private easement, some states do require a governmental body to assert some claim of ownership through acts of maintenance or otherwise. As shown by our case law construing section 43-2-201(l)(c), Colorado is one of these' states.
In conducting our analysis, we turn first to what constitutes a public road; then we examine the claim of right requirement that must accompany the public’s adverse use in order for a public road to exist by prescription.
B. What Is A Road Under Section 43-2-201(l)(c)?
We first address what constitutes a “road” for purposes of public prescription under section 43-2-201(l)(c).
We held that the legislature did not intend the synonymous terms “road” or “public highway” in section 43-2-201(l)(c) to include all footpaths in Colorado used adversely to the landowner by members of the public for twenty years or more. However, the legislature did intend that the courts consider the characteristics, conditions, and locations of the ways in applying the statute. Simon,
We concluded that the public entity responsible for maintaining public roads in the jurisdiction must take some action, formal or informal, indicating its intention to treat the right of way as a public road. Id. at 1303 (citing Kratina v. Board of County Comm’rs,
Due to the lack of any positive action by the claiming county or township that demonstrated a claim of right, the Kansas Supreme Court ruled that there could be no public road by prescription:
In any event, the court is satisfied that the rule adopted here is the more equitable one, and will resolve the difficulties inherent in attempting to determine the intent of a landowner and of the public on the basis of ambiguous acts alone. The cases just cited and others, to the extent that they support the establishment of a public road based on public travel alone, and dispense with any action by public authorities, are disapproved.
In this case there was never any recognition, formal or informal, of the disputed road by any public body. Under the rule just announced there could be no public road by prescription.
Id. at 506-07,
When explicating section 43-2-201(l)(c), we adopted and applied the Kratina claim of right rule in Flickinger and Simon. In Simon, we recognized that a footpath might qualify as a public road in the jurisdiction if it were included on the government’s map of its road system. We assumed that an action of the public entity, such as placing the footpath on a city map for the requisite twenty year prescription period, coupled with use by the public for that period, would meet both the claim of right and the adversity requirements for a prescriptive public road within the meaning of section 43-2-201(l)(c). Simon,
Our reasoning and holding in Simon recognizes that section 43-2-201(l)(c) appears in the statutory provisions pertaining to the acquisition, funding, and maintenance of state, county, and city roads and road systems. Under these provisions, a county, for example, may obtain a public road by (1) express or implied dedication of the road to the public by the property owner, section 43-2-201(l)(a),(b); (2) purchase of a right-of-way, section 43-2-204; (3) condemnation and payment of just compensation for the property interest necessary for the road, sections 43-2-112 and 43-2-204; or (4) prescription, section 43-2-201(l)(c). As we discuss in more detail below, to proceed by the fourth means, the public entity must establish its claim of right by some overt action that puts the landowner on notice that it intends to include the public way within its road system; only then can the public way be considered a “road” or “public highway,” thus beginning the prescriptive period under section 43-2-201(l)(c).
C. Requirements for Obtaining a Public Road by Prescription
The claimant of a prescriptive right for a public road across private property has the burden of proving compliance with the requirements for such a right by a preponderance of the evidence.
(1) members of the public must have used the road under a claim of right and in a manner adverse to the landowner’s property interest;
(2) the public must have used the road without interruption for the statutory period of twenty years; and
(3) the landowner must have had actual or implied knowledge of the public’s use of the road and made no objection to such use.
Id. at 980 (emphasis added). The first part includes both adversity and claim of right.
Flickinger presented a factual situation very different from the case before us now. In 1953, the county included the road as part of the county road system.
During the 1960s and 1970s, county employees graded the road using county equipment several times. Additionally, the county installed two culverts under the road in 1953, and cleared snow from the road at the request of local ranchers. The Flickingers were always aware that the public used the road for recreational purposes and that governmental employees used it to access adjacent federal land. The Flickingers knew that public employees were keeping the road in good repair. Some users sought the Flickingers’ permission to use the road; most did not. Id. at 979-80.
Occasionally the Flickingers had to tell users to leave their property if they camped on it or left trash, but they never interfered with the use of the road until 1977. In 1977, because of concerns about the increasing number of people crossing their property via the road, the Flickingers locked an existing gate. In 1978 the Department of Highways struck the road from the public highway inventory and ceased contributing payment of funds to Saguache County to maintain the road. Id. at 979.
Saguache County then sought an injunction barring the Flickingers from locking the gate to prohibit public access to the road. Ruling that the road was indeed a public road by prescription, the trial court issued the requested injunction. Id. at 980. We affirmed under section 43-2-201(l)(c), holding that this section codifies the common law method by which the public can obtain a property interest for a public road by prescription. We identified the requirements necessary for such an acquisition: the public must have used the road: (1) under a claim of right and in a manner adverse to the landowner’s property interest; (2) without interruption for the statutory period of twenty years; and (3) the landowner had actual or implied knowledge of the public’s use and did not object to such use. We added that when a claimant shows that the use has continued for the prescriptive period of time, the claimant is afforded a presumption that the use was adverse.
The Flickingers argued that the gate at the foot of the road prevented the public from establishing the requirement of adversity, despite the fact that they had never locked the gate until 1977. We concluded that “the placement of the gate does not conclusively establish the character of the public use as permissive and nonadverse. A gate, in other words, may be erected for purposes other than obstruction of public travel.” Id. at 981. The evidence in Flick-inger showed that the primary purpose of the gate was to benefit a rancher who used the Flickinger’s property as pasture for his
We held that sufficient evidence existed to find that the public had used the Flickingers’ road “under a claim of right and in a manner adverse to [their] property interests” since at least 1953. Id. at 980. The evidence showed that the county asserted the public character of the road when it incorporated it into the county road system. In addition: (1) the county received state funds to maintain the road; (2) the public continuously entered the property and used the road for recreational purposes as well as to access adjacent lands; and (3) the Flickingers had “actual knowledge of the public use of the road and generally acquiesced in it.” Id. at 981. Hence, both the requirement of adversity and the requirement of a claim of right were met in regard to a prescriptive right for a public road on Flickingers’ property.
D. No Road Prescriptive Right in this Case
Although the route across the McIntyre property once supported vehicular travel on a tramway route from five to eight feet in width, in some places, to twelve to fifteen feet in width, in other places, the use the public made of this route during the statutory twenty year period was for a footpath. A scrap marble heap from previous marble quarrying operations along the route requires walkers to “scramble” over the pile; other obstacles to vehicular travel exist, such as fences and posts.
Because the public’s use during the statutory twenty year period was for a footpath, our decision in Simon is particularly pertinent. Gunnison County must have taken some overt claim of right action, formal or informal, giving notice to the landowner of the public’s claim of right and demonstrating that it considered the footpath across the McIntyre land to be a public road, for example, by performing maintenance or including the footpath on its county road system during the prescriptive period. Simon v. Pettit,
The only evidence of maintenance by a public entity in the record before the trial court was that the Colorado Division of Mined Land Reclamation had entered the McIntyre property to build a boardwalk over a washed out section of the route to the old marble quarry site for safety purposes. This entry occurred by written permission of the McIntyres’ predecessor in interest, with the agreement expressly providing that the landowner waived no rights by granting access permission to the State.
In the absence of any overt action by Gunnison County indicating its intention to treat the footpath along the old tramway route as a public road, the trial court and the court of appeals erred by conflating the adversity and claim of right requirements for establishment of a public road by prescription pursuant to section 43-2-201(l)(c) into a single criteria of public use for the twenty year statutory period. Neither court applied all of the Flickinger requirements; in particular, the claim of right requirement. They examined only the adversity requirement.
But, our contemporary case law contains a restrictive reading of section 43-2-201(l)(c), requiring twenty year use by the public of a road in a manner adverse to the landowner and under a public claim of right. In Colorado, two parallel lines of cases have developed from our courts. One line of cases addresses the requirement of adversity. The other line addresses claim of right. This claim of right must be supported by evidence of an overt act or acts that put the landowner on notice of the public’s claim of right to a road across the property. We now discuss both requirements but preface our analysis with a discussion about the dedication cases.
1. Dedication and Adverse Possession Distinguished
We first addressed public prescriptive rights in Starr v. People,
Use of the road by the public for a considerable length of time without objection by the owner of the land may increase the weight of the evidence, if any there be, arising from acts or declarations of the owner indicating his intent to dedicate. But mere use, without such acts or declarations, unless for a period of time corresponding to the statutory limitation of real actions, cannot be held sufficient to vest the easement in the public, as by prescription.
Id. at 460,
We revisited the issue of dedication and implied dedication in Mitchell v. City of Denver,
That the city of Denver, or some of its constituent municipal corporations, six or seven years before the trial graded this street, put up signposts at the intersection of the adjoining streets, and placed thereon the names thereof, is not, under the facts, sufficient evidence of acquiescence by the owners in this alleged assertion of public ownership, or sufficient to make out an ownership arising from adverse possession.
Id. at 40,
We next addressed the issue in Lieber v. People,
2. Adversity and Claim of Right
In 1931, we formally recognized that the public must make some public claim of right in order to establish a prescriptive easement.
Prior to the case now before us, the court of appeals has addressed the claim of right requirement as well as the adversity requirement. See Littlefield v. Bamberger,
Several witnesses testified to the public’s continuous use of [the road] and the [public] maintenance of it for over twenty years. [The landowner] even testified that he was aware of traffic on [the road]; he admitted that, prior to acquiring the disputed property, he saw approximately ten cars per week, in addition to regular school bus traffic, using [the road].
Id. at 104.
In Board of County Comm’rs v. Kobobel,
In Board of County Comm’rs v. W.H.I., Inc.,
While a public claim of right is a separate and necessary requirement for establishing a public prescriptive right to a road, the claim of right requirement is integrally intertwined with the adversity requirement. Sporadic use of the road is not enough to establish adversity or put the property owner on notice of a public claim of right. Turner v. Anderson,
While evidence of a fence or gate on the road gives rise to a strong indication that any public use of the road is permissive, their existence does not provide the landowner with a conclusive presumption that the use is permissive. In Mayer v. San Luis Valley Land & Cattle Co.,
Similarly, in Lang v. Jones,
In Walter v. Hall,
3. Statutory Public Policy
In reviewing the case before us, we also look to the statutory public policy. The legislative intent of section 43 — 2—201(1)(c) is that the establishment of a public road by prescription is a narrow alternative to the other available means a public entity has for establishing a road, which include: (1) express or implied dedication of the road to the public by the property owner; (2) purchase of a right-of-way by the public entity; or (3) condemnation and payment of just compensation for the property interest necessary for the road.
The General Assembly has encouraged landowners to allow public use of then-land; in turn, it has guarded against landowners losing their property rights when allowing such use. See § 33-41-103, 9 C.R.S. (2003) (limiting landowner liability for public use of private land). The vacant land exception also demonstrates this legislative policy, as we discussed in Simon. Travel over vacant land is deemed permissive and cannot serve as the predicate for a prescriptive right:
Where the land is vacant and unoccupied and remains free to public use and travel until circumstances induce the owner to enclose it, the mere travel across it, without objection from the owners, does not enable the public to acquire a public road or highway over the same. Such use by the public of vacant and unoccupied land by travel over it, even after the period of twenty years, is regarded merely as a permissive use.
Simon v. Pettit,
The trial court and court of appeals rulings in the case now before us, if upheld, would have the effect — contrary to Colorado public policy — of discouraging private landowners from allowing: (1) the public to cross then-land for recreational purposes to reach other private or public lands; and (2) without this use causing adverse consequences to the property interests and title of the landowner.
Consistent with this statutory policy, the public entity claim of right requirement under Section 43-2-201(l)(c), recognized in Simon and Flickinger, establishes a restrictive statutory policy towards public prescriptive road claims. The public entity claimant must establish the public’s adverse use for the twenty year prescriptive period and take some overt action or actions that give the property owner notice of the public’s claim of right in order for the prescriptive period to commence running under section 43-2-201(1)(c). The strongest indicator of a
Accordingly, on the claim of right issue, the claimant must provide evidence that a reasonably diligent landowner would have had notice of the public’s claim of right to the road. The evidence must include some overt act on the part of the public entity responsible for roads in the jurisdiction that it considers the road a public road. This notification commences the prescriptive period; without it, the prescriptive period never begins.
An overt act sufficient to provide notice of the public claim of right could include any number of actions. In a state such as Colorado, where snowfall is a frequent occurrence, plowing roads might constitute an overt act. Including a road on a public road system map, using the road for mail delivery or school buses, expending public funds for the maintenance or improvement of the road, posting signage indicating a public road, or installing drainage systems for the road could each be an act putting the landowner on notice of the public’s claim of right to the road. As with the other requirements for establishing a public road by prescription, the public entity has the burden of proof by a preponderance of the evidence to demonstrate that it considered the way across the private property a public road.
In the case before us, the only evidence of any public claim of right to access across the McIntyre property is that the Colorado Department of Mined Land Reclamation entered the property to construct a boardwalk over a washed out section of the trail for safety purposes. But this work occurred with the property owner’s permission under an agreement between the State of Colorado and the property owner.
The uncontested facts of record on summary judgment do not demonstrate Gunnison County’s claim of right for a public road on the McIntyre property that commenced the running of the twenty year prescriptive period; thus, the trial court erred in ruling that the prescriptive period had run against these property owners. The trial court’s summary judgment order and quiet title decree in favor of Gunnison County must be vacated in regard to the McIntyre property. Because no other property owner appears to contest the trial court’s quiet title decree in favor of the County, we presume that these claims were settled in favor of the County, or that the other private property owners impliedly dedicated the old tramway right-of-way across their property to the County.
III.
Accordingly, we reverse the judgment of the court of appeals and remand this case for further proceedings consistent with this opinion.
APPENDIX A
We have surveyed the case law from the highest courts of many states and found that
In the following cases the courts required only a showing of adversity.
Carter v. Walker,
Swindler v. Toomey,
Mahoney v. Town of Canterbury, [
Earle v. Poat,
Gore v. Blanchard,
The cases we find applicable here, based on our discussion in Simon and Flickinger, include both adverse use by the public and a public entity claim of right.
Nelms v. Steelhammer,
Cox v. Cox,
Swinford v. Roper,
O’Connell v. Chicago Terminal Transfer R.R. Co.,
Kratina v. Board of County Comm’rs,
Cummings v. Fleming County Sportsmen’s Club, Inc.,
Downing v. Benedict,
Comber v. Plantation of Dennistown,
Mackenna v. Town of Searsmont,
Sprow v. Boston & A.R. Co.,
Bain v. Fry,
Trowbridge v. Van Wagoner,
South Branch Ranch Co. v. Emery,
Ladner v. Board of Supervisors,
Wills v. Reid,
Terry v. City of Independence,
Smith v. Russell, [
Swandal Ranch Co. v. Hunt, [
Board of County Comm’rs v. Friendly Haven Ranch Co.,
Speir v. Town of New Utrecht,
Doyle Milling Co. v. Georgia-Pacific Corp.,
Donohugh v. Lister,
Scheller v. Pierce County,
Cramer v. Dep’t of Highways,
Boyd v. Woolwine,
Witter v. Damitz,
Board of Comm’rs v. Patrick,
Notes
. We granted certiorari on the following issues:
1. Whether section 43-2-201(l)(c), 11 C.R.S. (2002) requires the government to give notice of public use or of a public claim of right to the landowner before acquiring property by prescription.
2. Whether respondent denied petitioners' constitutional right to due process prior to property deprivation by taldng a trail by prescription across petitioners' private property as a public road where respondent never notified petitioners of any claim of right for public use of that trail.
. Section 43-2-201(l)(c) provides that "[a]ll roads over private lands that have been used adversely without interruption or objection on the part of the owners of such lands for twenty consecutive years" are public highways. Read in context with the other provisions of section 43-2-201(1), subsection (l)(c) requires some form of "action or knowing inaction by the appropriate governmental body” for a public right. Simon v. Pettit,
. In 1984, when we decided Flickinger, the standard of proof in adverse possession cases was by clear and convincing evidence. See Flickinger,
. Prior to 1924, the road existed as a "wagon” road, consisting of just two dirt tracks. In 1924, the road was converted to a dirt road in order to allow vehicular access. Flickinger,
. To the extent that our holding in Shively v. Board of County Comm’rs,
. We attach, as Appendix A, a survey of cases decided in other jurisdictions regarding the requirements for a public prescriptive right.
. Many of the states surrounding Colorado have definitively addressed this issue. Specifically, Idaho has required that the board of commissioners lay out and record a road in order to establish a public highway. Cox v. Cox,
Dissenting Opinion
dissenting:
I.
I find two grave errors in the majority analysis which cause me to dissent. First, and most troublesome, is the majority’s insertion of an additional requirement into the test for prescription of a public highway. Second, the majority conflates the test for whether a road is established by adverse possession with the determination of whether the route is a road in the first instance. I cannot agree with the majority’s decision to add an additional requirement of government action to the test for prescription given the fact that the legislature has not changed the statute in over one hundred years. Furthermore, I find that the majority’s analysis of the threshold question of whether a particular route is a road under the prescription statute incorrectly includes elements of prescription. I respectfully dissent.
II.
The General Assembly enacted the section under which this case arises in 1893. Ch.
We have interpreted this section in our previous cases and have held that a party seeking to establish a road across private property as a public highway must demonstrate:
(1) members of the public must have used the road under a claim of right and in a manner adverse to the landowner’s property interest;
(2) the public must have used the road without interruption for the statutory period of twenty years; and
(3) the landowner must have had actual or implied knowledge of the public’s use of the road and made no objection to such use.
Id. Thus, our case law merely outlines what the statute dictates: there must be adverse, uninterrupted use for twenty years, with the owner’s knowledge.
I disagree with the majority’s analysis and application of this test because the majority attempts to separate our requirement that the use must be “under a claim of right and in a manner adverse” into two distinct requirements. As I do not find that we have ever stated that use under a claim of right is any different than adverse use, I cannot agree with the majority’s analysis. Moreover, the majority’s further assertion that this additional requirement applies only to public entities is untenable. I find the majority’s departure from our previous case law, despite the fact that legislature has not changed the statute in over one hundred years, an exercise of authority more properly left to the General Assembly.
First, the terms “use under a claim of right” and “adverse use” are synonymous. The majority contends that we have developed “two parallel lines of cases,” one which addresses “claim of right” and the other which addresses “adversity”. Maj. Op. at 410. However, the more obvious reading of our previous cases is that we have used the term “claim of right” only as explanation of, and thus synonymously with, the term “adverse use.” For example, in Lieber v. People,
The case law in Colorado illustrates that we have used these terms synonymously to describe the single requirement of adverse use by the public. In State v. Cyphers,
We have further defined adverse use as “actual, visible, exclusive, hostile.” Mayer,
In short, these terms all serve to explain, and differentiate, adverse use from permissive use. This distinction is important because if the evidence shows that the use was permissive, there can be no prescriptive right. Mayer,
Although recognizing that “the claim of right requirement is integrally intertwined with the adversity requirement,” Maj. Op. at 412, the majority still argues that we have actually established two separate requirements for a showing of adverse use. The majority states that in Mayer, “we formally recognized that the public must make some public claim of right in order to establish a prescriptive easement.” Maj. Op. at 411. However, in that case we stated only that the public must have used the land, “adversely under claim or color of right.” Mayer,
Bolstering the point that “claim of right” is merely another way of saying “adverse use” is our outline of the requirements to establish a public highway across private property in Flickinger. There we outlined three requirements. Under the first, we stated “members of the public must have used the road under a claim of right and in a manner adverse to the landowner’s property interest.” Flickinger,
Law in other states supports this analysis. Contrary to the majority’s assertion that many cases require both adversity and a public claim of right,” Maj. Op. at 414-416, Appendix A, the Restatement clearly states that a majority of states do not require governmental action to establish a public highway by prescription.
Second, the majority states that only public entities are subject to this additional requirement. Although the majority points to different language discussing the requirements for public and private prescriptive rights, we have never held public entities to a different standard than private individuals. For example, in Shively v. Board of County Commissioners,
Furthermore, although our language varies in our explanation of the requirements for a prescriptive right, the substance of the requirements is the same. In the context of a private prescriptive easement, we have stated that the easement is established if the use is: “1) open or notorious, 2) continued without effective interruption for the prescriptive period, and 3) the use was either a) adverse or b) pursuant to an attempted, but ineffective grant.” Lobato v. Taylor,
The majority’s desire to require an overt act on the part of public entities before a road can be established also confuses the test of adverse use with the determination of whether a route constitutes a road in the first place. As I feel that the distinction between these two issues may clarify my disagreement with the majority, I will discuss that issue next.
III.
We have stated that an initial question in a prescriptive rights case is whether the route in question comes within the definition of a “road” so that it may be declared a public highway. Simon,
The word “road” “is a generic term and includes overland ways of every character; the scope to be given it, depending on the
In Simon, we considered three things in deciding whether urban footpaths that cut through a vacant lot could constitute roads and thus come under the provisions of section 43-2-201(l)(c) for a prescriptive highway. First, we looked at the intention of the legislature and decided that when the legislature adopted the statute it did not intend for eighteen-inch urban footpaths to be considered public highways. Id. at 1302. Second, we addressed whether there was any evidence that the city had adopted the footpaths as roads. Id. at 1303. Third, we discussed the public policy behind rigidly applying the statute to include such shortcuts. Id. at 1303-04. Applying all of these factors, we held that the footpaths in question did not come under the definition of a road so as to come under section 43-2-201(l)(c). Id. at 1304. Thus, we stated, we did not need to address the additional issue discussed by the court of appeals: whether the public acquired prescriptive rights. Id.
Simon therefore illustrates that the initial determination of whether a route is a road, thus implicating section 43-2-201(l)(c), is different from the question of whether or not a public highway is established under section 43-2-201(l)(c). Although we considered evidence in that ease of whether the city had accepted the paths as public streets, we did so in the context of whether the road at issue fell under the definition of road so as to enable the prescription statute to apply. Furthermore, we specifically recognized that “section 43-2-201(l)(c) does not require the city to expend funds or otherwise demonstrate its willingness to accept highways established by prescription.” Id. at 1303. We stated that such evidence would strongly indicate that a path had acquired the status of a public highway. Id. However, those considerations were made in the context of whether the footpaths were roads so as to cause section 43 — 2—201(1)(c) to apply.
In short, the preliminary question of whether a route comes under the term “road” as used in the statute governing public highway prescription resolves only whether the statute applies. That determination is separate and distinct from the question of whether the public has established a public highway by prescription. If the majority truly believes the route at issue here is not a road, it would be more appropriate for the majority to resolve the case on that issue alone as we did in Simon, and leave the law of public prescription unaltered.
IV.
In sum, I disagree with the majority’s requirement that in order for a public highway to be established by prescription, an official governmental entity must make some formal action which the majority calls a “claim of right.” I believe that we have required only a showing of adverse use, which is synonymous with use under a claim of right. Thus, I find that the majority’s requirement is wholly new to our test for prescription as it has stood for over one hundred years. Furthermore, because I also disagree with the majority’s analysis of whether the route in question is a road, I believe the trial court and the court of appeals decided this case correctly. Accordingly, I respectfully dissent.
I am authorized to say that Chief Justice MULLARKEY joins in this dissent.
. In Flickinger, we stated that the use must be "under a claim of right and in a manner adverse to the landowner’s interest.” Flickinger,
. States that adopt the lost-grant theory of adverse possession have trouble extending prescription to the public. See Mihalczo v. Woodmont,
. The majority's assertion that Flickinger overruled Shively is problematic for two reasons. First, Flickinger quotes Shively approvingly. Specifically, Flickinger says: "A party relying on section 43-2-201(l)(c) is aided by a presumption that 'the character of the use is adverse where such use is shown to have been made for a prescribed period of time.’" Flickinger,