REAL ESTATE LAW NEWSLETTER

Editor's Note:

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.⁽¹⁾

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⁽²⁾ : easements by way of necessity⁽³⁾ by preexisting use⁽⁴⁾ by express or implied grant⁽⁵⁾ and by prescriptions⁽⁶⁾ In addition, easements may be established in Colorado by exercise of the private right of condemnation⁽⁷⁾ and by estoppel.⁽⁸⁾

A "way of necessity" is an easement arising from an implied grant or reservation.⁽⁹⁾ 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.⁽¹⁰⁾ 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.⁽¹¹⁾ 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,⁽¹²⁾ 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 shown to have existed when unity of title was severed, the final question is whether the necessity for the easement is great.⁽¹³⁾ A better description of this test might be to inquire whether the .need" for the particular right of way is great, since "necessity" means "indispensable" or "required"⁽¹⁴⁾ and reflects either bias or redundancy in the test.

While some jurisdictions require a showing of absolute necessity, Colorado law does not. Physical impossibility is not required; a showing of a practical inability to gain other access will be sufficient.⁽¹⁵⁾ In Wagner v. Fairlamb,⁽¹⁶⁾ the question of necessity arose because of terrain features and not because the dominant parcel was surrounded by property owned by others. The Colorado Supreme Court held that when the terrain is mountainous and rocky with steep canyon walls, the test of necessity would be whether not having the route across the servient estate would mean a practical inability to have access at all.

On the other hand, in LeSatz v. Deshotels, the Court of Appeals held that necessity did not exist where the land owner could build a bridge across a canal.⁽¹⁷⁾ The court concluded that if reasonable alternative means of ingress and egress exist, necessity does not. What counts as reasonable access is a question of fact for the court.

Easements by preexisting use also arise by implication of the intent of a prior common owner of the dominant and servient estates. As with easements by way of necessity, the evidence of the grantor's intent arises from common ownership of the dominant and servient estates and necessity for the easement. Again, necessity need not be physical impossibility. The need is determined at the time of severance, not at the time of the court hearing.⁽¹⁸⁾

The successful claimant of an easement by preexisting use also must present proof that (1) the use in question confers an obvious benefit to the dominant tenement and imposes a corresponding burden on the servient tenement and (2) the common owner used the premises in the altered condition for a long enough period before the unity severing conveyance occurred to validate the assumption that the altered condition was intended to be permanent.⁽¹⁹⁾

The reason that a plaintiff might elect to try to prove the additional elements required for an easement by preexisting use, when the result in either case would be an easement, rests in the duration of the two types of easements.⁽²⁰⁾ The easement by preexisting use originates in the grantor's use of the property and the implication that subsequent owners should have a similar use, without regard to a continuation of the necessity after severance.

Easements by Express Grant or Reservation

Express easements may be created by grant or by reservation. Although the Colorado Supreme Court in Wright did not include reservation within the list of ways to establish an easement, Colorado undoubtedly recognizes such easements.⁽²¹⁾ Express reservations commonly occur when a grantor retains an easement across the property being sold for the purposes described in the express reservation. Problems arise in determining whether a particular writing constitutes an easement and in settling the scope of the easement or the purposes for which it may be used.

Instruments which by their conveyance clause purport to convey a right of way over, across or on lands, devolve a right only. They are generally construed as creating an easement, as contrasted with granting a fee interest.⁽²²⁾ Whether a particular instrument actually grants or reserves an easement must be determined by reference to the intention of the parties as expressed in that instrument. When the language used is unclear or ambiguous as to the location, width or length of the easement, the court will look to the historic use of the easement.⁽²³⁾ Vagueness in the description of the easement does not generally threaten the existence of an easement. However, an extreme case of vagueness may result in a determination that no easement was granted.⁽²⁴⁾

As distinct interests in property, easements-similar to ownership of land may be acquired through adverse possession or use.⁽²⁵⁾ As with claims for adverse possession for fee ownership, claims for prescriptive easements require a showing of continued open, notorious and adverse use of the easement for the statutory period of eighteen years.⁽²⁶⁾

The plaintiff bears the burden of proving open and adverse use of the right of way for the statutory period. Based on Raftopoulos u. Monger,⁽²⁷⁾ several Colorado cases held that the plaintiff must prove prescription by "clear and convincing" evidence.⁽²⁸⁾ However, in 1989, the Colorado Supreme Court overturned this authority and held that a preponderance of the evidence is the applicable standard of proof in adverse possession cases for ownerships.⁽²⁹⁾ The Court of Appeals has since adopted this standard of proof for parties claiming prescriptive easements.⁽³⁰⁾

A recurring issue in prescriptive easement cases concerns the amount and frequency of utilization necessary to establish adverse use. The right of way need not be in continuous possession in the sense that it must be physically possessed every moment of every day. On the contrary, regular periodic use will suffice.⁽³¹⁾

The Court of Appeals in Agricultural Ditch & Reservoir Co. v. Gleason⁽³²⁾ found it sufficient that the claimant used the easement whenever the need arose and never intended not to use the easement I when it was needed. The difference between claiming a fee interest as opposed t to a mere easement is the exclusivity of the use by the claimant and other evidence of intent-not whether the use was irregular, infrequent and sporadic.⁽³³⁾ It is not clear how far a party may go in occasional use before such use is deemed "irregular and sporadic" rather than 'periodic."

The Colorado Constitution provides a private right to condemn as a remedy of last resort when common law principles would otherwise not provide legal access to landlocked parcels.⁽³⁴⁾ To condemn a private way of necessity, the claimant must show that necessity exists and must pay just compensation. The right to condemn an easement under Colorado law does not vitiate the common law right to claim an easement by necessity.

Although necessity is also an element of the implied easements of necessity and preexisting use, those easements arise only in favor of a grantee over the land of the grantor and not over the lands of strangers.⁽³⁵⁾ The right to condemn a way of necessity, on the other hand, requires only the existence of necessity and payment of just compensation, not other elements such as unity of title.

The courts have established several rules pertaining to the exercise of the private right of condemnation. First, private corporations may exercise the right.⁽³⁶⁾ Second, the party seeking to condemn an easement may not create the necessity for the easement.⁽³⁷⁾ Third, the party seeking to condemn an easement must own, in fee, the property to be accessed by the easement.⁽³⁸⁾ Finally, agencies of state government may not use this provision to condemn private property for private use.⁽³⁹⁾10. This decision relies in part on the fact that the state did not own the property to be served by the easement, a requirement announced in Coquina Oil, supra, note 37, and also on the premise that the state may exercise its powers of eminent domain only to take private property for public uses.

Granting rights and imposing easements to use the property of another on the basis of estoppel presents practical problems of application. Colorado courts have tried diligently to impose a rigorous test for creating easements by estoppel, by requiring some degree of turpitude.⁽⁴⁰⁾ However, the courts have stopped short of expressly delineating the requirements for such an easement.

At best, these decisions dispense instructions to make the following inquiries: (1) whether the party to be estopped acted so as to falsely represent or conceal material facts, or at least conveyed the impression that the facts were different than those which this party later tries to assert; (2) whether the party to be estopped acted with an intention, or expectation, that his or her conduct would be acted on by the other party; and (3) whether the party to be estopped had knowledge (actual or constructive) of the real facts.

The party claiming estoppel also must be questioned regarding (1) whether this party suffered a lack of knowledge and of the means of acquiring knowledge of the true facts; (2) whether the party claiming estoppel relied on the conduct of the party to be estopped; and (3) whether the party claiming estoppel acted on the facts provided by the other in such a way as to change his or her position.⁽⁴¹⁾

Conclusion

Colorado courts have recognized and confirmed the creation of easements through various means. Given the frequency with which these courts have addressed the subject of easements and the intricacy of factual and legal issues raised by these cases, further developments and refinements in this area of the law should be expected.

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NOTES

1. An easement is a right conferred by grant (express or implied) or by prescription, authorizing a party to do or maintain something on the land of another which, although a benefit to the land of the former, may be a burden on the land of the latter. Back

2. 697 R2d 384 (Colo. 1985). Back

3. Yunker v. Nichols, 1 Colo. 551 (1872). Back

4. Martino v. Fleenor, 365 P.2d 247 (Colo.1961) Back

5. Wagner v. Fairlamb, 379 P.2d 165 (Colo. 1963). Back

6. Gleason v. Phillips, 470 P.2d 46 (Colo. 1970). Back

7. Colo. Const. Art. 11, § 14. Back

8. Gyra v. Windler, 40 Colo. 366, 91 P. 36 (1907). Easements arising by virtue of a preexisting use or necessity depend on an implied grant or reservation. Back

9. Martino, supra, note 4. Back

10. Yunker, supra, note 3; State Dept. of Highways v. Den. & Rio Grande Western RR Co., 757 P2d 181 (Colo.App. 1988). Back

11. The Colorado courts have yet to decide a case where the unity of title was anything less than perfect, such as the grantor owning less than a 100 percent interest in one of the two parcels. Where such cases have arisen in other jurisdictions, the courts have found no unity of title. See 94 A.L.R.3d 502 (1979). Back

12. 719 R2d 731 (Colo.App. 1986). Back

13. Martino, supra, note 4. Back

14. Webster's New Collegiate Dictionary. Back

15. Wagner, supra, note 5; LeSatz v. Deshotels, 757 R2d 1090 (Colo.App. 1988). Back

16. Supra, note 15. Back

17. Supra, note 15. Back

18. Proper v. Greager, 827 R2d 591 (Colo.App. 1992). Back

19. Id. Back

20. See Bromley v. Lambert and Son, Inc., 752 R2d 595 (Colo.App. 1988). Back

21. Board of County Commissioners v. Anderson, 525 R2d 478 (Colo.App. 1974), affd sub norn., Anderson v. Union Pacific RR Co., 534 R2d 1201 (Colo. 1975). Back

22. Lincoln Sav. & Loan Assoc. v. State, 768 R2d 733 (Colo.App. 1988). Back

23. Gjovig v. Spino, 701 R2d 1267 (Colo. App. 1985). See also Pickens v. Kemper, 22 C01O.Law. 608 (March 1993) (App.No. 91CA2057, anncV 1/28/93). Back

24. Isenberg v. Wbitchek, 356 P.2d 904(Colo.1960). Back

25. Agricultural Ditch & Reservoir Co. v. Gleason, 686 R2d 802 (Colo.App. 1984), revd in part, Hutson v. Agricultural Ditch & Reservoir Co., 723 P.2d 736 (Colo. 1986). Back

26. Bart's Body Shop, Inc. v. Hagernan, 536 R2d 1150 (Colo.App. 1975); Agricultural Ditch & Reservoir Co., supra, note 25. While an adverse possession claim based on color of title may succeed after seven years of actual possession if the possessor has paid property taxes during those years, the claimant of an easement by prescription has nothing to pay taxes on and thus cannot shorten the eighteen-year statutory period. Back

27. 656 R2d 1308 (Colo. 1983). Back

28. Allen v. First Natl Bank of Arvada, 208 P.2d 935 (Colo. 1949); Auslaender v. MacMillen, 696 R2d 836 (Colo.App. 1984). Back

29. Gerner v. Sullivan, 768 R2d 701 (Colo. 1989). Back

30. Proper, supra, note 18. Back

31. Gleason, supra, note 6; Rivera v. Queree, 358 R2d 40 (Colo. 196 1); Agricultural Ditch & Reservoir Co., supra, note 25. Back

32. Agricultural Ditch & Reservoir Co., supra, note 25. Back

33. nrner v. Anderson, 274 P2d 972 (Colo.1954). Back

34. Colo. Const. Art. II, § 14. There is a statutory counterpart at CRS § 38-1-102(3). Back

35. Crystal Park Co. u. Morton, 27 Colo. App. 74, 146 P 566 (1915). Back

36. Id. Back

37. Coquina Oil Corp. u. Harry Kourlis Ranch, 643 R2d 519 (Colo. 1982). Back

38. Id. Back

39. State Dept. of Highways, supra, note 10. This decision relies in part on the fact that the state did not own the property to be served by the easement, a requirement announced in Coquina Oil, supra, note 37, and also on the premise that the state may exercise its powers of eminent domain only to take private property for public uses. Back

40. Aubert v. Ybwn of Fruita, 559 P2d 232 (Colo. 1977). Back

41. Id.;Pagel v. Reyman, 628R2d 166(Colo. App. 1981); Collins, supra, note 12. Back

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