Chapter 12 - § 12.3 • OFF RECORD PRIVATE ROADS

• Jurisdiction: Colorado

§ 12.3 • OFF RECORD PRIVATE ROADS

§ 12.3.1—Adverse Possession (Prescriptive Easements)

The 2008 revisions to the adverse possession statute, C.R.S. §§ 38-41-101, et seq., (see Chapter 10) do not apply to prescriptive easements, easements by implication, or easements by estoppel.¹¹

Easements created by use over a period of time are known as easements by prescription. Most of the adverse possession concepts discussed in Chapter 10, "Adverse Possession," apply.¹² One notable difference is that the party claiming a prescriptive easement does not need to be in continual possession of the easement every minute of the day for 18 years. Rather, use of the easement by the claimant whenever desired is all that is required.¹³ This is just common sense, because no one continually camps out on an access road.

In Lobato v. Taylor,¹⁴ the Colorado Supreme Court held that adversity is not always required to establish an easement by adverse possession. In that case, the court quoted the Restatement (Third) of Property,¹⁵ stating that prescriptive use is either (1) adverse to the owner of the land against which the easement is claimed, or (2) pursuant to an intended but imperfectly created servitude.¹⁶ In dissent, Justice Kourlis pointed out that C.R.S. § 38-41-103 requires adversity. In that case, the court was evaluating title documents that were as old as 150 years. The court found that these documents may have been technically defective, but use by the easement owners under those documents was sufficient to create the easement rights.¹⁷

In LR Smith Investments, LLC v. Butler,¹⁸ the Colorado Court of Appeals set forth the elements of a prescriptive easement claim as follows: use that is "(1) open or notorious; (2) continuous without effective interruption for at least eighteen years; and (3) either adverse or pursuant to an attempted but ineffective grant."¹⁹

Use of a road that is "casual, intermittent and generally with the permission of the landowners" is not sufficient.²⁰ However, intermittent use on a long-term basis satisfies the requirement for open, notorious, and continuous use.²¹ An adverse possession period can be interrupted by permission from the true owner.²² Generally, evidence of permissive use will defeat a claim for a prescriptive easement.²³ The party claiming adverse possession must show that the traveled way was confined to a reasonably certain and definite line; minor deviations, however, are acceptable.²⁴ Whether the route remained substantially the same is a question of fact.²⁵ It is not necessary to plead permissive use as an affirmative defense in a case claiming an easement by prescription. That sort of evidence is admissible to contradict the claimant's assertion of adversity.²⁶

As in general adverse possession law, presumptions play an important role in litigation over prescriptive easements. For example, there is an initial presumption in favor of the record titleholder.²⁷ Where possession is open, notorious, and continuous for more than the statutory period, it will be presumed to have been adverse.²⁸ However, that presumption is negated if permissive use is a contested issue,²⁹ but only where initial permissive use is actually established.³⁰ Further, permissive use will not be presumed simply because the owner of the land crossed by the easement remained silent.³¹ In fact, an easement may be acquired through the acquiescence or silence of a property owner.³² This concept has also been held to justify rejection of the "Doctrine of Neighborly Accommodation" in Colorado, although it has been recognized by some states.³³

If the land crossed by the purported easement was vacant, unenclosed, and unimproved at the inception of the use, it will be presumed that the use began as permissive. If use begins by permission,³⁴ it can never ripen into adverse possession no matter how long the use continues, unless the party claiming adverse possession gives a notice or explicit disclaimer to the owner that the use has changed to one of hostility.³⁵

A prescriptive easement may be extinguished when the dominant and servient estate come into common ownership.³⁶ However, where the sole owner of the servient estate also owns the dominant estate in joint tenancy with his or her spouse, merger will not occur because this does not constitute joint ownership for merger purposes.³⁷

§ 12.3.2—Easement By Necessity

An easement by necessity can arise with no direct evidence of its existence in either the real estate records or on the ground. In the classic law school example, the owner of Blackacre (O) sells the north half of the property to Buyer (B). Before Blackacre was split in two, the only access to any portion of the land was from a public road that ran along the northern border. Now that the south half has been severed from the north half, the only way to get to the south half (retained by O) is across the north half, now owned by B. In this instance, an easement by implication has arisen across the north half of Blackacre to serve the south half. The theory is that O would not have sold the north half of the property without reserving an access way for the remaining property.³⁸ The easement by necessity can arise without any prior use of an access road. Therefore, there will be no indication on the ground that an access easement exists or had ever existed. The public records technically reveal that such an easement is possible, but only by piecing together several deeds and comparing them to the status of access as it exists on the property. For these reasons, easements by necessity can come as a surprise to the new servient estate owner.

The elements of an easement by necessity are: (1) unity of ownership prior to severance, (2) necessity of the easement at the time of severance, and (3) the necessity must be great.³⁹ The case law holds that the necessity of the easement must be "great," but not necessarily the only possible alternative.⁴⁰ In determining whether the need is "great," the court will look at the necessity at the time the properties were split, not at the time of trial.⁴¹

§ 12.3.3—Easement By Implication

A theory of access easement creation related to the easement by necessity is the easement by implication. These easements arise under the same factual scenario as easements by necessity, except here, an actual roadway or passageway existed before the parcels were severed.⁴² The elements of an easement by pre-existing use are: (1) "unity and subsequent separation of title";⁴³ (2) "obvious benefit to the dominant and burden to the servient tenement existing at the time of conveyance"; (3) "use of the premises by the common owner in their altered condition long enough before the conveyance to show that the change was intended to be permanent"; and (4) "necessity for the easement."⁴⁴ Thus, with an easement by necessity, where no roadway existed in the past, the claimant can presumably have his or her pick of routes crossing the servient estate (with consideration for undue disruption of the servient estate), whereas the claimant of an easement by implication will be stuck with the pre-existing route.

§ 12.3.4—Easement By Estoppel

In Lobato v. Taylor, the Colorado Supreme Court recognized a new theory of easement creation in the easement by estoppel.⁴⁵ As the authority for this type of easement, the court cited to the Restatement (Third) of Property. The elements of an easement by estoppel are:

1) the owner of the servient estate "permitted another to use that land under circumstances in which it was reasonable to foresee that the user would substantially change position believing that the permission would not be revoked," 2) the user substantially changed position in reasonable reliance on that belief, and 3) injustice can be avoided only by establishment of a servitude.⁴⁶

This could set a trap for a landowner attempting to avoid the creation of a prescriptive easement across his or her property by granting permission to a neighbor to use a road. As we know from § 12.3.1, granting someone permission to use your property will prevent them from ever acquiring an interest in that property through adverse possession.⁴⁷ However, if that same neighbor uses the road permissively, but takes some action in reliance on the ability to continually use the road, the permissive use could ripen into an easement of right. Probably the most likely action would be construction of a house or some other type of improvement on the dominant estate by the easement user with the servient estate owner's knowledge.

Another aspect of the easement by estoppel is the rather vague and value-judgment loaded language. Phrases like "reasonable to foresee," "substantially change position," "reasonable reliance," and "injustice can be avoided" make both summary judgment and accurately predicting the ultimate outcome of such a claim inherently difficult.

§ 12.3.5—Private Condemnation

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