Chapter 12 - § 12.11 • RECREATIONAL EASEMENTS

• Jurisdiction: Colorado

§ 12.11 • RECREATIONAL EASEMENTS

Colorado courts have held that easements may be established for recreational purposes. For example, the Colorado Court of Appeals recognized a recreational easement in Brown v. Faatz.¹⁹⁰ In Brown, the Conejos County District Court, J. Swift, following a bench trial, found that Brown established a prescriptive easement over a road for recreational purposes. This finding was not overturned, or even questioned on appeal. See Clinger v. Hartshorn¹⁹¹ (finding prescriptive easement for guide and outfitting use); Lobato v. Taylor¹⁹² (finding prescriptive easement, easement by estoppel and easement from prior use for grazing, firewood and timber, and recognizing possibility of similar easements for hunting, fishing, and recreational rights, although facts did not support such rights).

§ 12.11.1—Lake Or Reservoir Easements

Land covered by water is treated just like any other land for easement and ownership purposes. For example, in People v. Emmert,¹⁹³ the Colorado Supreme Court upheld trespassing convictions of two people who had floated rafts on the Colorado River over private property. "He who owns the surface of the ground has the exclusive right to everything which is above it."¹⁹⁴

The Colorado Court of Appeals cited Emmert in Bergen Ditch & Reservoir Co. v. Barnes,¹⁹⁵ in addressing an easement and use of the surface of a reservoir. There, the land under the reservoir was owned by two different people, one of whom, Bergen owned the majority of the land and the other, Barnes, who owned only a small portion. Barnes' predecessor had given an easement to Bergen to "overflow and use as part of a lake" the portion of the Barnes property that was covered by the reservoir. In the lawsuit over recreational use of the reservoir's surface, the court held that Barnes could not use the water over Bergen's property because Barnes had no easement or right to do so. Bergen, on the other hand, could use the water over Barnes' property because of the written easement. The easement was non-exclusive, so both Barnes and Bergen could use the water over Barnes' property.

In Bijou Irrigation District v. Empire Club,¹⁹⁶ the Colorado Supreme Court held, as a matter of law, that use of the surface of a reservoir for recreational purposes by the owners of the underlying property was inconsistent with the right of the reservoir company under its easement to store water, and the use would unreasonably interfere with the easement right.¹⁹⁷ On the flip side, the court also ruled that the reservoir company's attempts to use the water's surface for recreational use would overburden the easement the company held to store water on the servient estate.

The law in other states is similar. Many courts have found implied easements for the use of a lake and that maintenance obligations are split proportionally. Greisinger v. Klinhardt¹⁹⁸ (Plaintiffs sued to enjoin draining man-made lake. Defendants claimed to own 85 percent of land under lake and land where dam located. Plaintiffs owned upper portion of lake and part of the dam. Defendants and Plaintiffs had built cabins on lake and had boats. "The plaintiff and defendants got along very well for a time. . . . Then trouble began." Defendants prohibited Plaintiffs and guests from using lake over Defendants' property. Defendants placed wire across lake and began draining lake to remove water from above Plaintiffs' property. "The Defendants claimed they were lowering the waters of the lake for the purpose of repairing the dam. This was disputed by the...