A Survey of Colorado Easement Law-part I
| Publication year | 1993 |
| Pages | 991 |
1993, May, Pg. 991. A Survey of Colorado Easement Law-Part I
This first article in a two-part series on the law of easements in Colorado defines the types of easements by origin or right. The second article, to be published in the June issue, will explore the scope of use and the termination of easements.
Easements are an important part of the law of real property. Colorado law defines an "easement" as an interest in property which, though distinct from an ownership interest in the land itself, nevertheless confers on the holder an enforceable right to use the property of another for a specific purpose.(fn1)
Given the nature of easements and the frequency with which they appear on the legal landscape, it is not surprising that Colorado appellate courts have delivered more than 100 opinions on the subject. Nearly one-fourth of those opinions have been issued since 1980, reflecting the increase in competitive uses of land in the latter portion of this century. This article summarizes existing Colorado case law relating to the creation and enforcement of easements.
Easements may be established in a variety of ways. They are commonly referred to and categorized by the means through which they are established. Four varieties of easements were recognized by the Colorado Supreme Court in Wright v. Horse Creek Ranch(fn2): easements by way of necessity,(fn3) by preexisting use,(fn4) by express or implied grant(fn5) and by prescription.(fn6) In addition, easements may be established in Colorado by exercise of the private right of condemnation(fn7) and by estoppel.(fn8)
A "way of necessity" is an easement arising from an implied grant or reservation.(fn9) Implied in each conveyance is the grantor's intent (1) to convey whatever is necessary for the beneficial use of the property conveyed and (2) to retain whatever is necessary for the beneficial use of the land the grantor still possesses.(fn10) If the necessity for an easement exists following a conveyance, the courts will impute to the grantor the intent to grant or reserve the easement.
Colorado law requires the presence of three elements in order to recognize an implied easement by way of necessity. First, at some point in time, the property that the easement will serve (the dominant estate) and the property over which the easement will pass (the servient estate) must have been held in the name of a single grantor. This element, customarily referred to as unity of title, requires exact identity of title.(fn11) Absent unity of title, there was no single grantor to have been concerned with both pieces of property such as would give rise to the presumed intent.
The next question concerns whether necessity for the easement existed at the time when unity of title was severed. If necessity did not exist at this time, it becomes perverse, and arguably enigmatic, to attribute to the grantor the intent to reserve or grant the easement in question. On the other hand, if the grantor owned both the servient and dominant estates, severed his or her ownership of the two, and at that time the necessity for an easement across the servient estate and in favor of the dominant estate was apparent, ascribing the intent to grant or reserve the easement makes sense.
In Collins v. Ketter,(fn12) two adjoining parcels owned by a single grantor each historically had equal access to a county road by crossing a stream which ran along their boundaries. After the conveyance that severed unity of title, the original owner of the parcels made a road across the length of the remaining property and built a bridge across the stream. Years later, the plaintiff claimed the right to use this bridge and road by virtue of an easement by way of necessity. The trial court found that necessity did
not exist when unity of title was severed because both parcels at that time gained access to the county road by crossing the stream. The Colorado Court of Appeals concurred.
If there was unity of title and necessity can be...
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