Implied Easements: the Complicated Cousin of the Express Easement
| Publication year | 2014 |
| Pages | 63 |
Articles Real Estate Law
Implied Easements: The Complicated Cousin of the Express Easement
By Nathan G. Osborn
Real Estate Law articles are sponsored by the CBA Real Estate Law Section.
Coordinating Editor
Joseph E. Lubinski, Denver, of Ballard Spahr LLP-(303) 299-7359, lubinskij@ballardspahr.com
About the Author
Nathan G. Osborn is a shareholder with Montgomery Little & Soran, PC. His primary areas of practice include real estate litigation, commercial litigation, general civil litigation, and real estate transactions—nosborn@montgomerylittle.com. He thanks Will Ross for editing this article.
This article provides an overview of implied easement theories in Colorado that can be useful when litigating a quiet title action or leveraging your position in pre-trial negotiation.
An easement is a limited non-possessory right to use or enter onto the property of another that obligates the owner of the land to not interfere with the authorized uses of the easement.[1] An easement can be created expressly or by implication.
Express easements are, as the word "express" suggests, expressly granted, frequently in the form of an easement deed that is recorded with the county clerk and recorder. Implied easements are the express easement’s more complicated cousin, an area of property law that is concerned with honoring the intentions of the parties to avoid injustice.[2] Unlike express easements, implied easements need not be memorialized in writing or recorded in the public record. Nevertheless, they give rise to permanent property rights based on the conduct and conveyances of the current parties or their historical predecessors. This article discusses implied easement theories in Colorado that may be useful in litigation.
Definitions of Basic Terms
The law of implied easements sometimes reads like a foreign language. Indeed, the case law is full of confusing property law legalese that most practitioners have not encountered since law school. The following is meant to refresh your recollection and to assist with the translation process.
. "Servitude" means a property right that runs with the land to successive owners.
. "Tenement" means real property.
. "Dominant tenement (or estate)" means the property that benefits from the use of an easement over another person’s property.[3]
. "Servient tenement (or estate)" means the property that the easement crosses.[4]
. An easement is "appurtenant" to property when the benefit or burden of the easement runs with an interest in property.[5]
History
Implied easements have a long history in Colorado. One of the earliest opinions to address an implied easement is Crystal Park Co. v. Morton,[6] a 1915 case involving a landlocked property near Pikes Peak. The Crystal Park court defined the implied easement by necessity as "an easement founded upon an implied grant" and "an application of the principle that where one party conveys property, he also conveys whatever is necessary to the beneficial use of that property."[7]
Another early Colorado case involving implied easement rights is Davis v. Randall.[8] Davis dealt with a litigant attempting to restrain property owners from interfering with his right to transport water through ditches and laterals across an adjacent property owner’s parcel. The Colorado Supreme Court adopted findings made by the Virginia Supreme Court, which had held that when the specific terms of a conveyance are not expressed, "the construction will be controlled by the use and condition of the property at the time of the sale, and certain implications and presumptions of law arising thereon."[9] Ultimately, the Davis Court found that the deed at issue expressly dealt with the relevant ditch rights and, therefore, there was no need to grant implied rights.[10]
Implied Easement Theories
Litigants in Colorado have used several theories to imply easements, including: (1) the prescriptive easement, (2) the easement by necessity, (3) the easement by pre-existing use, (4) an implied servitude based on a map or boundary reference, (5) servitudes implied from the general plan of development, and (6) an easement created by estoppel. These are discussed below.
Creation by Prescriptive Use
Similar to the law of adverse possession, an easement can be created by historical prescriptive use. The prescriptive easement argument frequently appears in mountain road lawsuits where a person or community has been using a road for decades despite having no record right allowing such use. This theory is also often used in city alley cases where a person has been using an undedicated private alley, over the property of another, to access his or her home. A prescriptive easement case is distinguished from an adverse possession case insofar as a claimant must possess the land to win an adverse possession case; a prescriptive easement case only requires use of the easement. In Lobato v. Taylor,[11] the Colorado Supreme Court found that a prescriptive easement can be established when the prescriptive use is: (1) open or notorious; (2) continued without effective interruption for eighteen years; and (3) the use was either adverse or pursuant to an attempted but ineffective grant.[12]
The most intensely litigated element of the prescriptive easement theory is typically whether the use was prescriptive. Although adversity is necessary for adverse possession claims, it is not required for prescriptive easements.[13] In short, in certain situations, courts find prescriptive easements when the owner of the servient tenement allows use.[14] Indeed, a prescriptive use in Colorado can be either a use that is adverse to the owner of the land or the interest in land, or a use or enjoyment that is done pursuant to an intended but imperfectly created servitude.[15] Use of an easement for more than eighteen years entitles the claimant to a presumption that the use was adverse.[16] That said, this presumption can be rebutted by proving that the claimant’s use was permissive.[17]
A use of an easement is not prescriptive if the use is permissive and not pursuant to an intended but ineffective grant. A recent case that dealt with permissive use is Maralex Resources, Inc. v. Chamberlain.[18] In Maralex, Maralex Resources, Inc. (Maralex) was the lessee under oil and gas leases issued by the United States. To access oil wells on federal property, Maralex and its predecessors used two roads located on adjacent property. After issues arose between Maralex and the neighboring property owner, Maralex filed an action seeking prescriptive access easements. The Colorado Court of Appeals held that Maralex was not entitled to a prescriptive easement because Maralex’s use of the roads was permissive insofar as Maralex and its predecessors had been given keys by the adjacent property owner to locked gates on the adjacent property.
Whether a plaintiff’s use was continuous may be an obstacle to establishing a prescriptive easement. A recent case that discusses interruption of the prescription period is Trask v. Nozisko.[19] Trask involved a hotly contested dispute between adjacent landowners over the use of a driveway in the mountains. The claimant began using the driveway in 1980. In 1984, the defendant property owner constructed a large dirt berm and trench across the driveway that prevented the claimant’s use of the driveway. A week after construction of the berm, the claimant removed it and continued his use of the driveway for the remainder of the prescriptive period. The Trask court held that the claimant’s use was not continuous because it was interrupted by installation of the berm.
The ineffective grant prong, first discussed in Lobato, is an interesting twist on the prescriptive easement theory that may be used in situations when a grantor attempts to convey an easement but, because of a legal technicality...
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