Chapter 12 - § 12.5 • PUBLIC ROADS

• Jurisdiction: Colorado

§ 12.5 • PUBLIC ROADS

A quiet title action is appropriate to bring a claim for a public road. Until 2012, private parties could bring an action to establish the existence of a public road and the local county did not necessarily have to be a party. For cases in which a private property owner brought an action alleging a public road and no local government was a party, see Mahnke v. Coughenour,⁷⁹ Martino v. Fleenor,⁸⁰ Goluba v. Griffith,⁸¹ Lovvorn v. Salisbury,⁸² Simon v. Pettit,⁸³ Boulder Medical Arts, Inc. v. Waldron,⁸⁴ and Pock v. Sinclair.⁸⁵ In fact, in at least two cases, private parties brought claims to establish a public road directly against the local government. In Heath v. Parker,⁸⁶ Boulder County was actually a defendant in the suit to establish the public road. Boulder County did not want the road, but the Colorado Court of Appeals nonetheless held that one existed. Similarly, in Mahnke,⁸⁷ a private property owner sought a building permit to start construction on property in the City of Aspen. The City of Aspen's building inspector denied the permit application based on a lack of access. In that case, the Colorado Supreme Court upheld the district court's finding that the access road to the private property owner's parcel was actually a public road and could not therefore form the basis of a denial of a building permit. Thus, under Colorado law, a private property owner may actually bring an action alleging the existence of a public road against the express position of the local government.

Then, on June 7, 2012, the court of appeals announced Bittle v. CAM-Colorado, LLC.⁸⁸ There, the court held that the county was an indispensable party to a case where a private party claimed a public road existed across a neighboring property owned by a private party. As legal support for its decision, the court stated that the county must be a party because it could be held liable for accidents on the road, citing Hallam v. City of Colorado Springs.⁸⁸ However, counties are immune from suit for accidents on county roads caused by dangerous conditions on the road. Wark v. Board of County Commissioners of Dolores County.⁹⁰ This is because the Colorado Governmental Immunity Act, which waives sovereign immunity for accidents on certain roads, omits counties from the list of entities that can be sued for accidents on public roads.⁹¹ The court in Bittle also justified its decision by stating that if the court declared that the road was public, the county would be obligated to maintain it. The court cited a number of cases from other states. However, in Colorado, counties are not required to maintain public roads, as stated in Turnbaugh v. Chapman,⁹² ironically a case cited by the Bittle court in a different part of its opinion.⁹³

More recently, in Gold Hill Development Co. v. TSG Ski & Golf, LLC,⁹⁴ the Colorado Court of Appeals held that the U.S. Forest Service was not an indispensable party in a case where the parties were claiming the existence of public roads and trails, even where the local county did not claim ownership of the trails.⁹⁵ The unanswered question is: if the county doesn't own the trails and the Forest Service doesn't own the trails, who does? The decision simply leaves the matter with the public having a right to travel the trails, but no indication of who or what entity owns or controls the public easement.

Public roads can be established under a number of different legal theories, both on record and off record. On record, roads can be created by dedication by a landowner and acceptance by the Board of County Commissioners or local municipality. This can occur with a deed referencing just one road, or through the recording of a subdivision plat that depicts roads within the subdivision that are dedicated and accepted by the local government as public roads or streets. Also, many old, now repealed statutes in Colorado offered methods by which landowners could create public roads, i.e., road viewer reports and petitions. Roads established under these old statutes are valid public roads, but it may take research to determine both the requirements under the old statutes and whether the actions by the people involved at the time complied with the then-existing laws.

Off record public roads can also be established a number of different ways, including:

• Federal statute R.S. 2477 — road existed before the first homesteader.
• Adverse use of road for 20 years.⁹⁶
• All roads over the public domain.⁹⁷
• Action of county commissioners that may not be of record.
• Road open in 1921.⁹⁸

The Colorado Division of Wildlife has standing to bring a lawsuit against a private property owner to open a road on behalf of the public.⁹⁹

In Gold Hill Development Co.,¹⁰⁰ the Colorado Court of Appeals considered claims by a private party against another private landowner under C.R.S. § 43-2-201(1)(e) and § 43-1-202. The court relied on prior findings in the case where the claimant had failed to prove the existence of a public road under R.S. 2477 (no road before removal of the land from the public domain).¹⁰¹

§ 12.5.1—Adverse Use

Public roads can be established through the use of the road by the public for 20 years.¹⁰² The elements of this claim are essentially the same as for a prescriptive easement, except the time period is 20 rather than 18 years. Also, the usage will typically be by several members of the public, rather than one or two landowners. A public road claim will be easier if the road historically connected two significant points, such as population centers or other locations frequented by many different people.

In McIntyre v. Gunnison County Board of Commissioners,¹⁰³ the Colorado Supreme Court added an additional requirement for proof of a public road under C.R.S. § 43-2-201(1)(c). Prior to McIntyre, three elements were required for a public road:

A party seeking to establish a road across private property as a public highway must demonstrate the following: (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.¹⁰⁴

The statutory language states that public highways exist for "[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."¹⁰⁵ Despite the absence of any requirement for governmental action in both the statute and in Flickinger, the McIntyre court held that the public road claimant must present evidence of an overt act by the public entity responsible for public roads sufficient to give notice of the public's claim of right to the road. The court listed such examples as snowplowing, including the road on the official map of county roads, using the road for mail delivery or school bus routes, spending public money on maintenance, or installing drainage systems. By raising an additional hurdle to prove a public road, condemnation — public or private — may become more common.

The Colorado Court of Appeals expanded on the public claim element, first introduced in McIntyre, in Gold Hill Development Co.¹⁰⁶ That case involved causes of action by an owner of mining claims to use a road crossing the Telluride ski area, as well as roads and trails in the nearby Bear Creek drainage. San Miguel County appeared as a party in the case and asserted claims that several trails crossing land owned by the plaintiff were public roads. Some of the actions the trial court relied on in finding overt acts by the government in claiming the trails as public roads included action by the U.S. Forest Service. The plaintiff argued that McIntyre requires the governmental action to be performed by the particular branch of the government that would own and control the road. Even though the court later acknowledged that the county was not claiming these trails,¹⁰⁷ the county was participating in the case and asserting rights of the public to use the trails and that seems to have been enough to focus on the acts of the county. Nevertheless, the court of appeals held that actions by the Forest Service could be sufficient to put the landowner on notice of a claim for a public road.¹⁰⁸ The court noted that the McIntyre court listed "mail delivery" as an activity that could put a landowner on notice that the county was making a public road claim. Mail delivery, of course is a function of the U.S. Postal Service.¹⁰⁹ Further, the trial court also relied on several specific actions by the county in claiming the trails and together, these actions, along with persistent public use of the trails, were sufficient to put the landowner on notice of the public claim to the trails.¹¹⁰

The court of appeals also considered whether the overt government acts must occur at the beginning of the prescriptive period. In that case, some of the governmental actions took place before the land passed into private ownership. Private ownership, of course, is a requirement for a prescriptive easement claim under the statute. The court of appeals concluded that "it makes more sense to interpret the overt act as a prerequisite rather than a point of initiation."¹¹¹

In another case, Eockstiegel v. Eoard of County Commissioners, the Colorado Court of Appeals held that the owner of property crossed by the right of way of an old stage coach road would be burdened by the road even though the owner bought the property without any notice of the existence of the road on the ground and despite the fact that nothing was recorded in the real estate records providing notice of the road.¹¹² In City of Lakewood v. Mavromatis,¹¹³ the Colorado Supreme Court held that evidence of a public road that existed only in the county "road book" did not provide...