23CA1099 Smith v Bowman 08-29-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1099

El Paso County District Court No. 20CV31169

Honorable Michael P. McHenry, Judge

Shawn A. Smith,

Plaintiff-Appellee,

v.

Ronald S. Bowman; Ronald S. Burgar, as Trustee of the Lois M. Burgar Trust

dated December 2, 1998; Marian G. Carter; Bruce Bradley Schardt; Lori Anne

Schardt; Michal Railsback; Lindsay Ann Railsback; James F. Higgins, Jr.; and

Audrey M. Higgins f/k/a Audrey M. Miller,

Defendants-Appellants.

JUDGMENT AFFIRMED AND CASE

REMANDED WITH DIRECTIONS

Division II

Opinion by JUDGE GROVE

Fox and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 29, 2024

Mulliken Weiner Berg & Jolivet P.C., Trevor J. Young, Erin M. Leach, Colorado

Springs, Colorado, for Plaintiff-Appellee

Alpern Myers Stuart LLC, Gregory M. O’Boyle, Colorado Springs, Colorado;

Linden Kominek, P.C., Mary Kominek Linden, Colorado Springs, Colorado, for

Defendants-Appellants

1

¶ 1 In this action to determine the existence of an implied

easement, defendants, Ronald S. Bowman; Ronald S. Burgar, as

Trustee of the Lois M. Burgar Trust dated December 2, 1998;

Marian G. Carter; Bruce Bradley Schardt; Lori Anne Schardt;

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Michal Railsback; Lindsay Ann Railsback; James F. Higgins, Jr.;

and Audrey M. Higgins f/k/a Audrey M. Miller (collectively,

Defendants), appeal the district court’s judgment in favor of

plaintiff, Shawn A. Smith. Because the district court correctly

granted in full Smith’s requested easement based on his claim for

an easement implied by prior use, we affirm and remand for the

determination of Smith’s appellate costs.

2

1

Bruce Bradley and Lori Anne Schardt are listed on the caption

pages of both parties’ briefs; however, it appears that the Schardts

do not access their property through any of the properties at issue

in this appeal and have never participated in this litigation. A

clerk’s entry of default against the Schardts was approved by the

district court in November 2020.

2

We do not reach Defendants’ contention on appeal that Smith

failed to prove his entitlement to an easement implied by necessity

because Smith’s successful claim for an easement implied by prior

use is sufficient to affirm the district court’s judgment. See City of

Aurora v. Colo. Dep’t of Rev., 2023 COA 17, ¶ 11 (“An appellate

court may . . . affirm on any ground supported by the record.”

(quoting McLellan v. Colo. Dep’t of Hum. Servs., 2022 COA 7, ¶ 10)).

2

I. Background

¶ 2 We draw the following factual background from the record and

the district court’s order issued after a bench trial. The court’s

findings have record support.

A. The Relevant Land

¶ 3 The dispute between Smith and Defendants concerns

neighboring parcels of land in El Paso County. In 1948, these

parcels were under the common ownership of Elmer and Pearl

Brown (the parcels marked in blue on the map below).

¶ 4 Between 1948 and 1952, a series of real estate transactions

divided this land as follows.

3

¶ 5 On April 1, 1948, the Browns conveyed land to John R. Clint

and Ralph M. Kinder (the yellow cross-hatched parcel marked on

the map below).

¶ 6 On September 26, 1949, the Browns conveyed land to

Rosemary Callahan (the pink cross-hatched parcel marked on the

map below).

4

¶ 7 On March 14, 1950, Rosemary Callahan conveyed land back

to the Browns (the blue cross-hatched parcel marked on the map

below).

¶ 8 On January 8, 1951, Elmer Brown conveyed land to Pearl

Brown (the blue cross-hatched parcel marked on the map below).

5

¶ 9 On June 6, 1952, Pearl Brown conveyed land to Reuel and

Anna Lahmer, who immediately conveyed the land to Ross and

Elizabeth Haskin (the orange cross-hatched parcel marked on the

map below).

¶ 10 On June 6, 1952, Charles and Leila Collins conveyed an

easement to Pearl Brown. This easement provided “[a] right-of-way

for roadway purposes only” over a private road extending northeast

from North Chelton Road across the Collinses’ property for the

benefit of Brown’s remaining land (what is today, Smith Parcel A,

Smith Parcel B, and Higgins East Parcel, which we describe further

below).

6

¶ 11 On June 6, 1952, Pearl Brown conveyed additional land to the

Lahmers, who immediately conveyed the land to William and Alice

Pearce (the bright green cross-hatched parcel marked on the map

below).

¶ 12 On November 13, 1952, Pearl Brown conveyed land to the

Lahmers, severing Parcel A and leaving it without access to the

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right-of-way easement that Brown received from the Collinses on

June 6, 1952 (the dark blue cross-hatched parcel marked on the

map below).

¶ 13 On December 11, 1952, the Lahmers conveyed land and the

right-of-way easement to Judson and Ione Fellman (the brown

cross-hatched parcel marked on the map below), severing Parcel B

and reserving it no rights for use of the right-of-way easement.

8

¶ 14 Smith purchased Parcel A in February 2010 and Parcel B in

March 2017. The virtually undeveloped

3

parcels are zoned for

residential use but are landlocked (city-owned Palmer Park borders

the parcels to the north, while private, residential real estate

surrounds the parcels in all other directions). Following Smith’s

purchases and other real estate transactions, the present division of

the land once under the Browns’ common ownership is reflected in

the map below.

3

According to the district court, “[t]hese parcels are essentially

undeveloped except for the relics of a concrete foundation on Parcel

A from what is assumed to be a small, long abandoned out-

building.”

9

B. Smith’s Lawsuit

¶ 15 In June 2020, Smith filed a quiet title action seeking an

easement implied by necessity and by prior use for ingress, egress,

and utility rights “over and through certain real property owned by

Defendants, which provides the sole access to [Smith’s] property,”

as Smith intended to develop Parcels A and B (the Smith Parcels)

for residential use. Specifically, Smith sought to obtain access to

the private road described within the easement the Collinses

conveyed to Pearl Brown on June 6, 1952 (which begins at North

Chelton Road and is currently used by Defendants to access their

properties and supply utilities) and to extend this easement to the

Smith Parcels. The private road ends approximately seventy-one

feet short of Parcel B, between the Higgins East and Higgins West

Parcels. The map below reflects the private road (with its existing

easements) and Smith’s requested extension.

10

¶ 16 After a four-day bench trial in which both sides presented lay

and expert witness testimony, the district court issued a thorough

written order finding that Smith had satisfied the elements for both

an easement implied by necessity and an easement implied by prior

11

use. The court granted in full Smith’s requested easement,

awarding ingress, egress, and utility rights across the existing

private road and an extension of these rights across the Higgins

West Parcel to Parcels A and B.

II. Grant of Easement

¶ 17 Defendants contend on appeal that the district court reversibly

erred when it found that Smith proved by a preponderance of the

evidence all elements of his claim for an easement implied by prior

use. Although Defendants argue the issue in several different ways,

they assert in essence that the district court failed to find a specific

prior use of the requested easement, ignored the abandonment of

any prior use, and relied on “speculative evidence” to reach

incorrect factual conclusions. We are not persuaded.

A. Standard of Review

¶ 18 When a court enters judgment following a bench trial, that

judgment presents a mixed question of law and fact. State Farm

Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, ¶ 12. While we review

the court’s application of the governing legal standards de novo, we

review its factual findings for clear error. Id.; May v. Petersen, 2020

COA 75, ¶ 10. We will disturb the court’s factual findings only if

12

there is no evidence in the record supporting them. See

M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1382-83 (Colo.

1994).

¶ 19 “It is the responsibility of the trial court as the trier of fact to

determine the credibility of the witnesses and the sufficiency,

probative effect, and weight of the evidence.” In re Marriage of

Hatton, 160 P.3d 326, 330 (Colo. App. 2007). It is not our role to

reweigh the evidence. Gagne v. Gagne, 2019 COA 42, ¶ 51. We

draw all reasonable inferences from the evidence in favor of the

prevailing party, including inferences and conclusions drawn from

conflicting evidence. See Weisiger v. Harbour, 62 P.3d 1069, 1071

(Colo. App. 2002).

B. Applicable Law

¶ 20 An easement implied by prior use arises “when a property

owner has used one part of a single piece of property for the benefit

of another part of the property.” Lobato v. Taylor, 71 P.3d 938, 972

(Colo. 2002) (Kourlis, J., dissenting) (citing Thompson on Real

Property § 60.03(b)(4) (David A. Thompson ed., 1994)). To establish

an implied easement by prior use, a party must demonstrate that

(1) the servient and dominant estates were once under common

13

ownership; (2) the right alleged was exercised prior to the severance

of the estate; (3) the use of the right was not merely temporary; (4)

the continuation of this use was reasonably necessary to the

enjoyment of the parcel; and (5) a contrary intention is neither

expressed nor implied. Id. at 951 (majority opinion).

¶ 21 Easements may be terminated by abandonment, but two

elements must be present for that to occur: (1) intention on the part

of the owner of the easement to abandon it and (2) an overt act

displaying such intention. 2 Cyndi Stovall, Colorado Practice Series:

Methods of Practice § 65:7(2), Westlaw (Stephen A. Hess ed., 7th ed.

database updated May 2024). “Non-use, however long continued,

will not constitute abandonment without the requisite intention to

abandon.” Id. And “[t]he fact that the owner of the easement has

failed to use the easement for any period of time is of no

consequence . . . because the owner of the easement has the

privilege of use or non-use at its pleasure.” Id. § 65:7(8.1).

Whether there was an intent to abandon an easement is a question

of fact that the party arguing for abandonment has the burden of

showing “by clear, unequivocal and decisive evidence.” Rivera v.

14

Queree, 358 P.2d 40, 42 (Colo. 1960) (quoting Hoff v. Girdler Corp.,

88 P.2d 100, 102 (Colo. 1939)).

C. Analysis

¶ 22 During a four-day bench trial, the district court considered

evidence concerning the relevant properties’ chains of title as well

as their appearance and use dating back more than a century.

¶ 23 The district court’s order took into account “maps and aerial

photos [that] show[ed] a barn on and a road up to and over Smith

Parcel A beginning in 1901 . . . and continuing through at least

1969 . . . , which [wa]s after severance of Smith Parcels A and B”

that were admitted into evidence. According to the district court,

“[t]he road [wa]s clear in the sequence of aerial photos, even as the

neighborhood change[d] around it,” and it “extend[ed] from what is

now the turn-around on the Higgins West property and continue[d]

[n]orth along the eastern boundary line of the Higgins West property

and onto Smith Parcel A, where a barn or structure [wa]s visible.”

Moreover, the court found, the maps and aerial photographs

demonstrated that the dirt road was the only means of accessing

the portions of Pearl Brown’s property that would later become the

landlocked Smith Parcels A and B, and Defendants presented no

15

evidence of recorded legal access to those parcels after their

severance.

¶ 24 Testimony from both parties also discussed “the existence of

the foundation of what appears to be an outbuilding which still

exists on Smith Parcel A,” including “historical retaining walls.”

And testimony from James Higgins and Defendants’ expert witness

revealed that the existing private road and its stone walls were

constructed in approximately 1880 — considerably earlier than the

property transfers relevant to this dispute.

¶ 25 Testimony, statements, and a deed admitted at trial also

demonstrated to the district court that, years and even decades

after Smith Parcel A was initially landlocked, multiple previous

owners of the Smith Parcels believed they had a right to an

easement over the private road to access their property. And, the

district court noted, “there is no evidence in the record of any

contrary intention by any of the previous owners of the relevant

properties.”

¶ 26 In its written order, the district court explained that, taken

together, this evidence satisfied all elements of Smith’s claim for an

easement implied by prior use. First, neither party disputed that

16

the relevant properties were once under common ownership.

Therefore, the district court concluded, “[t]he evidence . . . show[ed]

that not only the [e]xtension, but also the [e]xisting [e]asement,

ha[d] been used prior to, during, and after severance of Smith

Parcels A and B, for the benefit of all owners of the properties at

issue,” thus satisfying the second and third elements of Smith’s

claim. Second, because of the necessity of using the dirt road to

access the Smith Parcels, the district court found that Smith

satisfied the fourth element of his claim — that the continued use of

the dirt road was reasonably necessary to enjoy the parcels of land.

Lastly, the district court explained that the apparent belief by

multiple owners of the Smith Parcels that they could access their

property over the dirt road, along with the lack of record evidence

indicating any expressed or implied contrary intention, satisfied the

fifth element of Smith’s claim.

¶ 27 The district court applied the correct legal standard for

determining whether Smith established the existence of an

easement implied by prior use. And because the court’s findings

have record support, we will not disturb them. See Mortimer, 866

P.2d at 1382-83. To the extent that Defendants ask us to review

17

the district court’s factual conclusions purportedly based on

“speculative evidence,” we may not do so. It is not our role to

reweigh the evidence; to the contrary, we must defer to the fact

finder’s decisions on witness credibility and evidence, including

inferences and conclusions drawn from conflicting evidence. See

Gagne, ¶ 51; Weisiger, 62 P.3d at 1071.

¶ 28 We are also unpersuaded by Defendants’ contention that the

district court reversibly erred by failing to conduct an analysis of

the specific prior use for the easement before the Smith Parcels

were severed. In its order, the district court specifically found that

[d]espite Homeowner Defendants’ contention

that it cannot be concluded what the precise

use of the road was at all relevant times, the

cumulative effect of all of this evidence is that

a road has long been in existence from Chelton

Road all the way to the outbuilding on Smith

Parcel A, and that it was used for purposes of

accessing all of the properties along it,

including Smith Parcel A and the

improvement(s) thereon.

4

¶ 29 Defendants’ remaining contention with respect to this

easement — that any prior use was abandoned — is similarly

4

Given these findings, it is immaterial whether severance occurred

in 1948, as Defendants contend, or in 1952, as the court found,

because the road existed prior to both of those dates.

18

unavailing. Throughout their briefs, Defendants refer to the

easement as “abandoned,” yet they make no attempt to

demonstrate the two necessary elements for termination of an

easement by abandonment: (1) intention on the part of the owner of

the easement to abandon it and (2) an overt act displaying such

intention. See Stovall, § 65:7(2). Defendants repeatedly emphasize

their belief that many years have elapsed since this road was last

used for the benefit of the Smith Parcels, but non-use alone, no

matter how long, does not constitute abandonment of an easement.

See id. The district court correctly rejected Defendants’ argument

after they failed to prove “by clear, unequivocal and decisive

evidence,” Rivera, 358 P.2d at 42, that this easement was

abandoned. Defendants’ assertion on appeal that “the only logical

conclusion” from the evidence at trial is that any prior use “was

created for the benefit of the Clint/Kinder parcel” is nothing more

than an attempt to have this court reweigh the evidence, which we

may not do.

III. Scope and Location of Easement

¶ 30 Defendants also challenge specific details of the easement

granted by the district court. They maintain that the district court

19

was not permitted to include utility rights in Smith’s easement or to

place the easement over the Higgins West Parcel and alter some of

its dimensions. We reject these arguments.

A. Standard of Review and Applicable Law

¶ 31 The power to fashion equitable remedies lies within the

discretion of the trial court. Beren v. Beren, 2015 CO 29, ¶ 12.

Absent an abuse of that discretion, we will not disturb such rulings.

arbitrary, unreasonable, or unfair. Schneider v. Drake, 44 P.3d

256, 261 (Colo. App. 2001). We defer to a trial court’s findings of

fact so long as they are supported by the record. See Nat’l Propane

Corp. v. Miller, 18 P.3d 782, 787 (Colo. App. 2000).

¶ 32 A trial court may generally exercise its discretion to fashion

equitable remedies to resolve property disputes. See Strole v.

Guymon, 37 P.3d 529, 533 (Colo. App. 2001); see also Schneider, 44

P.3d at 262 (court did not abuse its discretion in devising equitable

remedy that addressed concerns of both parties in property

dispute). And “[i]n fashioning a remedy between the owners of the

dominant and servient estates, effecting a compromise between the

20

parties’ positions is often the best resolution of an easement

question.” Strole, 37 P.3d at 533.

¶ 33 The holder of an easement is entitled to use the easement in a

manner reasonably necessary for its continued enjoyment.

Restatement (Third) of Property: Servitudes § 4.10 (Am. L. Inst.

2000). The scope of easements implied by prior use, like easements

by necessity, is based in part on a presumption “that the grantor

has conveyed or retained whatever is necessary to provide for the

beneficial use of both properties.” Amada Fam. Ltd. P’ship v.

Pomeroy, 2021 COA 73, ¶ 58. “The manner, frequency, and

intensity of the use may change over time to take advantage of

developments in technology and to accommodate normal

development of the dominant estate or enterprise benefited by the

servitude.” Restatement (Third) of Property: Servitudes § 4.10; see

also Wagner v. Fairlamb, 379 P.2d 165, 169 (Colo. 1963) (An

easement’s “scope and type of . . . use, present and future, varies

with the necessity.”).

¶ 34 The scope of an easement created by implication is dictated by

the purpose for which the property was conveyed or retained,

including reasonably expected uses based on the parcel’s normal

21

development. See Thompson v. Whinnery, 895 P.2d 537, 541 & n.8

(Colo. 1995) (The scope of an easement created by implication “is to

be inferred from the circumstances which exist at the time of the

conveyance” including “the use which is being made of the

dominant tenement at that time”; however, this is to be limited not

by the exact use required by the dominant tenement at that time

but “measured rather by such uses as the parties might reasonably

have expected from future uses of the dominant tenement,”

including “such uses as might reasonably be required by a normal

development of the dominant tenement.” (quoting Restatement

(First) of Property § 484 (Am. L. Inst. 1944))). And “foreseeable

residential use reasonably includes utilities.” Amada, ¶ 60.

Moreover, “[w]hen the dominant tenement is subdivided, certain

existing easements appurtenant, such as for access and utilities,

may be expanded in scope so as to continue to serve the premises,

even though the use thereof is more frequent or intense than

originally contemplated.” Stovall, § 65:6(2).

¶ 35 The location of an implied easement “will frequently be the

same as an existing way or, if none exists, then along a reasonable

route designated by the servient owner.” Id. But a court exercising

22

its equitable powers may in its discretion alter the location of an

easement. Id.; see also Brown v. Bradbury, 135 P.2d 1013, 1013

(Colo. 1943) (trial court did not abuse its discretion when moving

easement for ditch away from house because power of courts of

equity to do so “is not open to question”).

B. Utilities

¶ 36 Defendants contend that the district court erred when it

granted Smith’s request for an easement that included utility rights.

They argue that Pearl Brown never possessed a utility easement

over Defendants’ property and that she therefore did not have a

right to reserve a utility easement for subsequent owners of the

Smith Parcels. However, the availability of utility rights as part of

Smith’s easement stems from the district court’s equitable powers

and the evolving nature of the easement over time, not the specifics

of Pearl Brown’s easement in the early 1950s.

¶ 37 The Smith Parcels — both zoned for residential use, one of

which the district court found historically contained “a barn or

structure” — were conveyed to individuals at a time when the land

once under common ownership was being developed for residential

use. Supplying utilities to the Smith Parcels was therefore a

23

reasonably anticipated use of the easement that the district court

found was implied by prior use, as normal development of the

Smith Parcels would foreseeably include residential development.

Because the district court had the authority to fashion equitable

remedies to resolve this property dispute, see Strole, 37 P.3d at 533,

and because awarding utility rights to accommodate the changing

needs of the Smith Parcels over time was an equitable remedy with

a sound basis in law, we cannot say that the district court abused

its discretion in awarding these rights.

C. Physical Placement

¶ 38 Defendants also contend that the district court erred by

altering some of the easement’s dimensions and by placing the

extension of the easement over the Higgins West Parcel rather than

the Higgins East Parcel. As with the awarded utility rights,

however, the district court’s equitable powers also permit its actions

here.

¶ 39 In its written order, the district court noted that its decision to

extend the easement across the Higgins West Parcel was informed

by James Higgins’s testimony about what was practical and

preferable for his property. Specifically, Higgins “agreed in his

24

testimony that given the lack of space between his house on Higgins

East and the property line, as well as the stone improvements, an

access road cannot be placed on Higgins East.” As occurred here,

implied easements are frequently located “along a reasonable route

designated by the servient owner.” Stovall, § 65:6(2). More

importantly, however, the district court found that the easement it

granted was implied by prior use of a road that “extend[ed] from

what is now the turn-around on the Higgins West property and

continue[d] [n]orth along the eastern boundary line of the Higgins

West property and onto Smith Parcel A” — exactly where the district

court positioned the extension of the easement.

¶ 40 And, with respect to the district court’s decision to alter some

of the easement’s dimensions at various points, the district court

was well within its discretion to exercise its equitable powers in this

manner. See Brown, 135 P.2d at 1013. Accordingly, we find no

abuse of the district court’s discretion.

IV. Request for Appellate Costs

¶ 41 Smith requests that this court “award [him] his costs,

pursuant to C.A.R. 39.” C.A.R. 39(a)(2) provides that “if a judgment

is affirmed, costs are taxed against the appellant.” Because we

25

affirm, we remand to the district court for a determination of

appellate costs.

V. Disposition

¶ 42 We affirm the district court’s judgment and remand the case

with directions.

JUDGE FOX and JUDGE SULLIVAN concur.