April 19, 2018

Colorado Court of Appeals: Prior Public Use Doctrine Precludes Condemnation that would Eliminate Public Use

The Colorado Court of Appeals issued its opinion in CAW Equities, L.L.C. v. City of Greenwood Village  on Thursday, March 22, 2018.

Eminent DomainPrivate CondemnationPrior Public Use DoctrineColorado Constitution Article XVI, Section 7.

CAW Equities, L.L.C. (CAW) sought private condemnation of a public equestrian and pedestrian trail (public trail) that bisects two of its adjacent properties to construct a ditch from the Highline Canal to the southern end of its properties. The City of Greenwood Village (City) owned the public trail from a plat dedication and separate dedication for equestrian and pedestrian use. The City moved to dismiss under CRCP 12(b)(1).The district court denied the petition and awarded the City attorney fees and costs.

On appeal, CAW argued that the district court erred in holding that CAW lacked the authority to condemn the public trail. The Court of Appeals agreed with the district court, finding that the legislature, through the eminent domain statutes, may regulate Colo. Const. art. XVI, section 7 (Section 7) so long as it does not unnecessarily limit or curtail the constitutional right.

CAW also argued that Section 7 is self-executing and cannot be limited or curtailed by the eminent domain statutes. The Court concluded that while Section 7 may be self-executing, well-settled law recognizes the legislature’s ability to regulate private condemnation, and the eminent domain statutes properly regulate the exercise of this right under Section 7.

CAW alternatively argued that even if the eminent domain statutes apply, its proposed plan does not violate them. It claimed that Section 7 does not require it to show a ditch is necessary, and that it provides an absolute right to condemn. The Court did not decide whether CAW must prove the ditch is necessary to access its water rights to be able to condemn the ditch because the land CAW sought to condemn was already in public use as a public trail. The Court decided, as a matter of first impression, that the prior public use doctrine applies to private condemnation proceedings under Section 7. Though Section 7 grants general authority to condemn public property for a right-of-way to access water, it does not expressly grant the authority to extinguish an existing public use on such property; it merely grants express authority to a right-of-way if that right-of-way does not extinguish the public use. Further, the right to condemn an entire tract of public land in public use is not a necessary implication of the general right to privately condemn a right-of-way for a ditch. Here, there were other ways of transporting the water without interfering with the public trail. Where a private condemnor can obtain a right-of-way without extinguishing the existing public use, the condemnation power does not necessarily imply such a power. The district court was correct in finding that CAW failed to (1) allege express authority for its right to condemn all of the public trail; (2) prove that the right to condemn property already in public use was a necessary implication of its private condemnation right; and (3) prove that some public exigency existed to justify the necessity of condemning the public trail.

The Court also affirmed the City’s award of its attorney fees and costs.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Frederick Skillern: Real Estate Case Law — Easements and Public Roads (1)

Editor’s note: This is Part 10 of a series of posts in which Denver-area real estate attorney Frederick Skillern provides summaries of case law pertinent to real estate practitioners (click here for previous posts). These updates originally appeared as materials for the 32nd Annual Real Estate Symposium in July 2014.

frederick-b-skillernBy Frederick B. Skillern

Durango & Silverton Narrow Gauge Railroad Company v. Wolf
Colorado Court of Appeals, August 1, 2013
2013 COA 118

Railroad right-of-way; incidental use doctrine.

A property owner whose land is subject to a railroad company’s easement for railroad purposes objects when the railroad company leases a portion of its right-of-way to a local nonprofit for a bicycle path. The owner’s predecessor in title granted the railroad company this right in 1881:

[Grantor] does hereby sell, grant, convey, and release unto the said Denver and Rio Grande Railway Company the right of way for a width of one hundred feet—fifty feet on each side of center line—for the construction of the said Railway. . . . Giving and granting unto [the D&RG] the right to excavate, fill, ditch, drain, erect cattle guards and crossings [etc.].

The property owners appeal the trial court’s summary judgment in favor of the Durango & Silverton Narrow Gauge Railroad. The court of appeals affirms.

In 2009, the Durango & Silverton agreed to grant the City of Durango a nonexclusive easement to extend a public recreation trail over its right-of-way and adjacent to the railroad tracks. The tracks remain in use. Part of the trail crosses the Wolf’s property. Durango paid DSNGRR $1 million specifically for continued operations and maintenance. The trail also will promote safe use of the right-of-way by pedestrians and bicyclists who walk and ride directly on the railroad tracks.

Wolf opposed the agreement, arguing that the 1881 right-of-way permitted use only for “railroad purposes” and that a recreation trail is not such a purpose. On cross-motions for summary judgment, the trial court held that the original deed conveyed an exclusive easement. It held that a railroad right-of-way is an expansive form of easement, giving the railroad company exclusive use and control of the right-of-way as long as it continues to operate a railroad. It also found that the use by the public was a railroad purpose, because it eliminated safety and liability problems and increased efficiency on any rail repairs.

Relying on state and federal case law, the court of appeals agrees that the right-of-way is more expansive than a typical easement, and that the Durango & Silverton has the right to exclusive use and control of the servient tenement. This use includes the right to lease portions of the right-of-way. It therefore affirms the judgment.

The appeals court does not address whether a public recreation trail is a “railroad purpose,” as the district court had found, relying instead on the “incidental use” doctrine. This doctrine, which has never been invoked in Colorado, states that a railroad may lease a portion of its right-of-way where the use is incidental to or not inconsistent with the railroad’s continued use of its right-of-way for railroad purposes. The public recreation trail meets both of these criteria, in the court’s view.

Wolf argues that the trial court erred by not requiring the joinder of five neighbors that he alleges are indispensable parties. Their property is also subject to DSNGRR’s right-of- way and are affected by the public recreation trail. The Court disagrees, holding that this dispute is governed in large part by the interpretation of the deed from Wolf’s predecessor, which is specific to Wolf’s property.

Frederick B. Skillern, Esq., is a director and shareholder with Montgomery Little & Soran, P.C., practicing in real estate and related litigation and appeals. He serves as an expert witness in cases dealing with real estate, professional responsibility and attorney fees, and acts as a mediator and arbitrator in real estate cases. Before joining Montgomery Little in 2003, Fred was in private practice in Denver for 6 years with Carpenter & Klatskin and for 10 years with Isaacson Rosenbaum. He served as a district judge for Colorado’s Eighteenth Judicial District from 2000 through 2002. Fred is a graduate of Dartmouth College, and received his law degree at the University of Colorado in 1976, in another day and time in which the legal job market was simply awful.

Tenth Circuit: Express or Implicit Dispute of Title Necessary to Trigger Quiet Title Act’s “Disputed Title” Requirement

The Tenth Circuit Court of Appeals issued its opinion in Kane County, Utah v. United States on Tuesday, December 2, 2014.

In April 2008, Kane County, Utah brought an action under the Quiet Title Act (QTA), 28 U.S.C. § 2409a, to quiet title to five roads in southern Utah. It later amended its complaint to cover 15 roads or road segments. The county asserted the rights-of-way pursuant to R.S. 2477, which reserved a right-of-way for construction of highways over public lands not reserved for public uses. R.S. 2477 was repealed by the Federal Land Policy and Management Act of 1977 (FLPMA)  but existing rights-of-way were preserved. The State of Utah intervened in the county’s action as co-plaintiff. After a 9-day bench trial, the district court issued two orders. In the first order, the district court held that it had subject matter jurisdiction under the QTA as to all 15 roads at issue. The second order made findings of fact and addressed the merits, finding that Kane County and Utah had proven R.S. 2477 rights-of-way on 12 of the 15 roads and setting proper widths for the rights-of-way. Both orders were challenged on appeal.

Kane County and Utah argued that the district court erred by finding that Public Water Reserve (PWR) 107 reserved two parcels of land from the operation of R.S. 2477. They also challenged the district court’s requirement of proof by clear and convincing evidence of the R.S. 2477 rights-of-way. The United States also appealed, claiming that the district court lacked jurisdiction over the county’s claims regarding several roads because of the absence of a disputed title to real property. The United States also contended the district court erred in setting widths for the rights-of-way on three of the roads.

The Tenth Circuit first examined the subject matter jurisdiction claims of the United States and amici. For a court to have jurisdiction over a QTA claim, the plaintiff must show that (1) the United States “claims an interest” in the property at issue, and (2) title to the property is “disputed.” The Tenth Circuit, as a matter of first impression, evaluated what requirements satisfy the QTA’s “disputed title” requirement. The Tenth Circuit rejected the Ninth Circuit’s “cloud on title” standard and instead held that, to satisfy the QTA’s “disputed title” element, the plaintiff must show that the United States has either expressly disputed title or taken action that implicitly disputes it. Actions that produce ambiguity are not enough to satisfy the disputed title element.

Turning its attention to the roads at issue, the Tenth Circuit found that the district court did not have jurisdiction over the Sand Dunes Road and the Hancock Road. These roads were omitted from a BLM map, but later the map was amended to show the roads. The district court ruled this created an ambiguity as to the legal status of the roads, but the Tenth Circuit found the ambiguity was insufficient to satisfy the QTA’s disputed title element and therefore the district court lacked jurisdiction. The Tenth Circuit also found the district court lacked jurisdiction as to the four cave roads. The district court’s treatment of the United States’ denial of allegations as sufficient to establish jurisdiction was in error.

Amici had argued the plaintiffs lacked R.S. 2477 jurisdiction over another road, the North Swag Road, because the QTA’s limitations period had expired. The Tenth Circuit found that the limitations period was not triggered because no adverse action had occurred.

The Tenth Circuit then turned its attention to the district court’s conclusion that PWR 107 had served to “reserve” two parcels of land across which Swallow Park Road runs from operation of R.S. 2477. The Tenth Circuit analyzed PWR 107, finding that it was intended to provide public access to certain water springs, and noted that it would be “nonsensical” to hold that the provision of public access to the springs expressly excluded the construction of roadways under R.S. 2477 on which the public could access the water springs. The Tenth Circuit reversed the district court’s determination that plaintiffs could not establish a right-of-way on the part of Swallow Park Road running through the two reserved parcels of land.

Finally, the United States argued that the district court erred by not designating right-of-way widths on three roadways on the uses established in 1977, and by improperly allowing room for improvements on the roadways. The Tenth Circuit agreed on both points. The district court was required to inquire as to the reasonable and necessary uses of the road, and expansions are only allowable when reasonable and necessary in light of pre-1977 uses of the roadways. Similarly, the district court exceeded its authority by allowing room for improvements. The Tenth Circuit likened this to putting the cart before the horse, finding instead that if the roadways needed improvements the land management agency must be consulted and allowed an opportunity to determine if the improvements are reasonable and necessary.

The judgment of the district court was affirmed in part, reversed in part, and remanded for further proceedings.

Tenth Circuit: United States’ Reservation of Canyonlands National Park Precludes State and County Public Use Claims

The Tenth Circuit Court of Appeals issued its opinion in San Juan County, Utah v. United States on Friday, April 25, 2014.

The United States government reserved Canyonlands National Park in Utah in 1964. Salt Creek Road runs through Canyonlands. It is an unimproved 12.3 mile road that is the primary access route to several points of interest in Canyonlands, including Angel Arch. The United States asserted exclusive control over the road, which the State of Utah and San Juan County, Utah contested was a public right-of-way. The state and county brought suit under the Quiet Title Act, claiming that waiver of sovereign immunity for the United States was appropriate due to the public’s continuous use of the road for ten or more years prior to the federal government’s reservation.

The trial court and the Tenth Circuit noted that continuous use of the road by the public was not enough to establish that the road was a public thoroughfare. Under Utah law, the continuous public use standard has three components – (1) continuous use, (2) as a public thoroughfare, and (3) for ten years or more. Although the state and county established continuous use of the road for at least ten years prior to 1964, they did not provide historical evidence of the road as a public thoroughfare for the ten years preceding 1964. Because the state and county did not meet the time requirement for use of the road, the judgment of the district court rejecting the state and county claims was affirmed.

Colorado Court of Appeals: Incidental Use Doctrine Permits Railroad to Lease Right-of-Way if Consistent with Railroad Purpose

The Colorado Court of Appeals issued its opinion in Durango & Silverton Narrow Gauge Railroad v. Wolf on Thursday, August 1, 2013.

Railroad Right-of-Way—Non-Exclusive Easement—Summary Judgment—Incidental Use Doctrine.

Defendants Timothy Wolf and Katherine Turner (collectively, Wolf) appealed the trial court’s summary judgment in favor of plaintiff Durango & Silverton Narrow Gauge Railroad (DSNGRR). The Court of Appeals affirmed.

In 1881, DSNGRR’s predecessor in interest acquired a right-of-way from plaintiff’s predecessor in interest. In 2009, DSNGRR agreed to grant the City of Durango a nonexclusive easement to extend a public recreation trail over its right-of-way and adjacent to the railroad tracks (which are still in use), part of which would run through Wolf’s property. In return, Durango paid DSNGRR $1 million specifically for continued operations and maintenance. The trail also will promote safe use of the right-of-way by pedestrians and bicyclists who walk and ride directly on the railroad tracks.

Wolf opposed the agreement, arguing that the 1881 right-of-way permitted use only for “railroad purposes” and that a recreation trail is not such a purpose. On cross-motions for summary judgment, the trial court held that the original deed conveyed an easement that gave DSNGRR exclusive use and control of its right-of-way as long as it continues to operate a railroad. It also found that the use by the public was a railroad purpose, because it eliminated safety and liability problems and increased efficiency on any rail repairs.

On appeal, the Court agreed with the trial court that the right-of-way was more expansive than a typical easement and that DSNGRR had the right to exclusive use and control of it. The Court noted Colorado and federal precedent that railroad rights-of-way are more expansive than ordinary easements and include the right to exclusive use and control. This expansive easement includes the right to lease portions of the right-of-way.

The Court did not address whether a public recreation trail is a “railroad purpose,” because it found the trail satisfied the incidental use doctrine. This doctrine, applied here for the first time in Colorado, states that a railroad may lease a portion of its right-of-way where the use is incidental to or not inconsistent with the railroad’s continued use of its right-of-way for railroad purposes. The public recreation trail meets both of these criteria.

Wolf then argued that the trial court erred by not requiring the joinder of five indispensable parties whose property also was subject to DSNGRR’s right-of-way and were affected by the public recreation trail. The Court disagreed, finding that this dispute centered on the interpretation of the deed from Wolf’s predecessor, which only concerned the right-of-way on Wolf’s property. The judgment was affirmed.

Summary and full case available here.

Colorado Supreme Court: Certified Question from U.S. Court of Federal Claims Answered by Colorado Supreme Court

The Colorado Supreme Court issued its opinion in Asmussen v. United States on Monday, July 1, 2013.

Real Property—Deeds—Construction and Operation—Railroad Easement Right-of-Way.

The Supreme Court considered a certified question from the U.S. Court of Federal Claims asking whether Colorado law presumes that abutting landowners own the underlying fee to the centerline of an abandoned railroad right-of-way. The Court determined that the centerline presumption is a common law rule of conveyance that presumes that a grantor who conveyed land abutting a right-of-way intended to convey land to the center of the right-of-way—to the extent that the grantor owned the property underlying the right-of-way and absent a contrary intent on the face of the conveyance. Therefore, although the Court held that the centerline presumption applies to railroad rights-of-way, it also held that, to claim presumptive ownership to the centerline of a railroad right-of-way, an adjacent landowner must produce evidence that his or her title derives from the owner of the land underlying the right-of-way. Accordingly, the Court answered the certified question in the negative.

Summary and full case available here.