June 26, 2019

Archives for February 17, 2015

Frederick Skillern: Real Estate Case Law — Easements and Public Roads (2)

Editor’s note: This is Part 11 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.

By Frederick B. Skillernfrederick-b-skillern

Maralex Resources, Inc. v. Chamberlain, Public Trustee of Garfield County Colo. App January 2, 2014 2014 COA 5 Oil and gas lease; prescriptive easement for access to wells; adverse or permissive use of roads; standing. Since 1996, Maralex has been a lessee under a series of federal oil and gas leases in Rio Grande County. Maralex operates and maintains various oil and gas wells located on federal land. To access the wells, Maralex and its predecessors in interest have historically used two roads crossing private property now owned by Nona Jean Powell. The Powell property is adjacent to the federal land. After issues arose between Maralex and Powell regarding use of the roads, Maralex filed a quiet title action seeking a decree that it has prescriptive easements over the roads for ingress and egress to the oil leaseholds. The trial court first found that Maralex lacked standing, as a real property lessee, to assert a prescriptive easement claim. Notwithstanding that finding, the court went on to consider the merits of the easement claims as a matter of judicial economy. It found that Maralex’s use of the roads was permissive and not adverse, and that Maralex did not establish the existence of the asserted prescriptive easements. On appeal, the court reverses the holding on standing. Citing a long string of cases, an oil and gas lessee has standing to bring a quiet title action and to enforce easement rights. One can even draw an analogy to surface cases in which use by a tenant may be tacked on to prior use by the fee owner in proving possession for the prescriptive period. The court finds sufficient evidence in the record to affirm the finding that the use by Maralex and its predecessors was permissive, not adverse. It was conceded that oil operators on the government land openly and continuously used the roads on Powell’s property for the statutory period. However, because Powell previously permitted the use, the use was not adverse. What made the use permissive? Like so many cases of this sort, we have gates on the roads, and cattle on a ranch. At one point a former owner of the Powell property gave keys to the oil company, telling a grazing tenant that he wanted to oil operation to be successful, but that he did not want his tenant’s herd to be impacted. Over the course of decades, there was all manner of evidence of a problematic nature, sufficient that the court could go either way on the “adversity” issue. The trial court resolved it like this – “By giving someone a key, it seems to the Court that the only reasonable interpretation is that ‘I want to keep people out, but not you. You have permission to use my road. Here is a key.’” The appeals court also notes that this could also be a recognition of a right of the user to access, with acquiescence by the easement claimant to blockage of use by others. The court goes along with the trial judge.   Sinclair Transportation Company d/b/a Sinclair Pipeline Company v. Sandberg Colorado Court of Appeals, June 5, 2014 2014 COA 76 Pipeline easement; assignability of easement in gross; proof of assignment of easement rights by parol evidence; abandonment. This is one in a series – one might say a family – of cases involving Sinclair’s pipeline between oil fields in Wyoming and Denver. At one point, the pipeline crosses land in Weld County, creating friction with residential development, and with owners of land such as the Sandbergs. Sinclair seeks to upgrade its pipeline from 6” to 10” according to terms of the written pipeline easement, which dates back to 1963. The easement was in favor of the original servient owner and its “successors and assigns.” In an extensive opinion, the court affirms a partial summary judgment ruling in favor of Sinclair on defenses raised by the landowners, who sought to block any expansion or to require movement of the easement in order to minimize its impact on their residential development. The first issue deals with the use of parol evidence to prove a part of Sinclair’s interest (ownership of a series of assignments from partial owners of the pipeline). The court upholds a ruling that Sinclair could prove a part of its chain of title by proving assignment of one 50 percent interest in the line through testimony of an attorney representing one of the parties to the assignment. The court holds that no statute of frauds bars oral testimony to prove of an assignment of an easement. More importantly, the court holds that an easement in gross, especially one created for commercial uses, is assignable. The court relies on the modern trend in case law and comments in the Restatement of Property (Servitudes) § 4.6(1)(c) (“a benefit in gross is freely transferable”), as well as C.R.S. § 38-30-101 (“any person . . . entitled to hold . . . any interest in real estate whatever, shall be authorized to convey the same to another”). The court cites a Utah case, Crane v. Crane, 683 P.2d 1062 (Utah 1984) which surveys the easement in gross case law as it applies to pipelines and other commercial uses. For those interested in the industry, the court goes on to discuss interpretation of the easement document in regard to how a pipeline company can expand and improve its pipeline – whether a pipeline company must “remove, then replace” or “replace, then remove.” Finally, the court holds that Sinclair’s attempt in a parallel case to condemn a way across the land in question did not effect an abandonment of its deeded easement rights. The attempt to condemn was derailed in a 2012 decision of the Colorado Supreme Court discussed in this space. Another court of appeals decision (not discussed in this outline) deals with the pipeline condemnation issues.

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.

Colorado Court of Appeals: Pretrial Motion Insufficient to Preserve Issue for Appellate Review

The Colorado Court of Appeals issued its opinion in People v. Dinapoli on Thursday, February 12, 2015.

Assault—Jury—Modified Allen Instruction—Mistrial—Pretrial Ruling—Contemporaneous Objection.

K.M.’s dog and defendant’s dog “got into a tussle.” After the dogs separated, K.M. and defendant engaged in a physical altercation, during which defendant hit K.M. with a tree branch, dislocating her arm. Defendant claimed it was self-defense. The jury found defendant guilty of one count of second-degree assault.

On appeal, defendant contended that she was entitled to a new trial because the trial court should have told the jury that it would declare a mistrial if the jury could not reach a unanimous verdict. In response to the jury’s concern that they could not reach a verdict on the fourth charge, the court gave the jury a modified Allen instruction and instructed the jury to continue deliberations (Allen v. United States, 164 U.S. 492 (1896)). Trial courts are not required to supplement a modified Allen instruction with a mistrial advisement. Therefore, defendant was not entitled to a new trial on this argument.

Defendant also contended that she was entitled to a new trial because the prosecutor committed misconduct by referring to K.M. as the “victim” during trial. Although defendant obtained a pretrial ruling that precluded the parties from referring to K.M. as the victim, she never sought to enforce that ruling at trial with a contemporaneous objection. Because this error was not obvious and did not constitute plain error, defendant was not entitled to a new trial on this argument. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Prosecution for Forgery Not Precluded Where Conduct Also Falls Under Employment Penalty Statute

The Colorado Court of Appeals issued its opinion in People v. Clanton on Thursday, February 12, 2015.

Unemployment Compensation Benefits—Forgery—CRS § 8-81-101(1)(a)—Equal Protection—Restitution—Statutory Penalty.

Defendant obtained unemployment compensation benefits to which he was not entitled by using a false Social Security number and a fake military discharge form. The trial court found defendant guilty of forgery. The court sentenced defendant to eighteen months of probation and ordered him to pay $12,397.50 in restitution. That total included a 50% statutory penalty of $4,132.50, which the court believed was required by CRS § 8-81-101(4)(a)(II).

On appeal, defendant contended that he was unlawfully convicted of forgery. He argued that CRS § 8-81-101(1)(a) was the appropriate statute under which he should have been charged, because his misconduct involved making of a false statement of material fact, with intent to defraud, to obtain unemployment compensation benefits. CRS §8-81-101 does not address all criminal activity that may occur in the unemployment compensation context; rather, it addresses certain specific acts that may occur in the context of an application for benefits. Because the General Assembly did not intend to preclude prosecution for forgery where the conduct underlying the charge also arguably violates CRS § 8-81-101(1)(a), the People had the discretion to charge defendant with the more serious offense.

Defendant also contended that the forgery statute, CRS § 18-5-102, fails to provide an intelligible standard by which to differentiate the conduct proscribed from that proscribed by CRS § 8-81-101(1)(a). Therefore, charging him under the forgery statute violated his constitutional right to equal protection of the laws. The forgery statute applicable here includes elements that CRS § 8-81-101(1)(a) does not. Accordingly, the People could charge defendant with forgery without violating his right to equal protection of the laws.

Defendant further contended, the People agreed, and the Court of Appeals concurred that the district court should not have assessed the 50% penalty provided for in CRS § 8-81-101(4)(a)(II) as part of his restitution obligation. That portion of defendant’s sentence, including the statutory penalty as restitution, was vacated, and the case was remanded to the district court to correct the mittimus to reflect the proper amount of restitution.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: No Error in Denial of Crim. P. 35(c) Postconviction Relief Motion

The Colorado Court of Appeals issued its opinion in People v. Romero on Thursday, February 12, 2015.

Crim.P. 35(c)—Ineffective Assistance of Counsel—Fifth Amendment—Sixth Amendment—Right to Counsel—Competency—Prosecutorial Misconduct.

Romero was convicted of first-degree murder for shooting A.S. He was sentenced to life in prison without the possibility of parole. He filed a motion for post-conviction relief pursuant to Crim.P. 35(c), which was denied without a hearing.

On appeal, Romero contended that attorney F.G. ineffectively assisted him during his police interview when he failed to advise Romero of the consequences of submitting to police interrogation and a polygraph test. Romero’s Fifth Amendment right to counsel had not attached because the police interview was not custodial. Romero’s Sixth Amendment right to counsel had also not attached because Romero had not yet been charged. Accordingly, Romero’s ineffective assistance of counsel claim with regard to F.G.’s pre-indictment representation failed.

Romero contended that F.G. ineffectively assisted him during trial because F.G. visited Romero in jail and improperly advised him. Because F.G. did not represent Romero during any critical stages of the case, did not help him prepare his defense, and did not otherwise appear on his behalf, the constitutional guarantee of effective assistance did not apply. Accordingly, Romero’s ineffective assistance of counsel claim with regard to F.G.’s post-indictment advice also failed.

Romero further contended that D.J. and R.C. ineffectively assisted him when they (1) allowed him to be tried while incompetent, and (2) failed to object contemporaneously to alleged prosecutorial misconduct at trial. The record reflects that defense counsel raised the issue of Romero’s competency numerous times, and the court made adequate rulings on the record each time. In regard to Romero’s claims of prosecutorial misconduct, even assuming that the prosecutor’s statements were improper and that counsel’s failure to object constituted deficient performance, Romero failed to allege facts demonstrating prejudice. Therefore, the post-conviction court did not err in dismissing these claims without an evidentiary hearing. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Snowplow is Motor Vehicle so Immunity Under CGIA Waived

The Colorado Court of Appeals issued its opinion in Roper v. Carneal on Thursday, February 12, 2015.

Motion to Dismiss for Lack of Subject Matter Jurisdiction—Colorado Governmental Immunity Act—Tort Claims— “Motor Vehicle” Versus “Special Mobile Machinery.”

Carneal, an El Paso County employee, was driving a county-owned snowplow when he allegedly failed to stop at a stop sign. Plaintiff, Roper, drove off the road to avoid Carneal and crashed, suffering personal injuries and damage to her car. She filed this action against Carneal and the Board of County Commissioners of El Paso County (County Board), alleging claims of negligence per se, negligence, respondeat superior, and property damage/loss of use.

Defendants moved to dismiss for lack of subject matter jurisdiction, arguing they were immune from suit under the Colorado Governmental Immunity Act (CGIA). The CGIA generally bars tort-related claims against public entities and employees, but waives immunity for a public employee’s operation of a motor vehicle under certain circumstances. Defendants argued the snowplow was “special mobile machinery” rather than a “motor vehicle,” and therefore the motor vehicle waiver of immunity did not apply.

The district court denied the motion to dismiss based on the nature of the vehicle (a modified dump truck with seats for two but generally driven by one operator and used exclusively on county roads to remove snow and ice). Defendants filed this interlocutory appeal.

The Court of Appeals reviewed the statutory definitions of “motor vehicle” and “special mobile machinery” and concluded the snowplow in this instance was a “motor vehicle”; therefore, governmental immunity was waived. The Court noted that a “motor vehicle” under CRS §42-1-102(58) must be designed primarily for travel on the public highways and generally and commonly used to transport persons and property over the public highways. The undisputed evidence was that the snowplow was a dump truck designed to remove snow and ice from the public highways by traveling on them. The Court found that a vehicle need only transport persons or property, despite the use of “and” in the statute, because requiring transport of both persons and property would be “absurd and unreasonable.” It further held that carrying sand and salt constituted transporting property.

The Court also held that the definition of “special mobile machinery” requires a finding that the vehicle is “only incidentally operated or moved over public highways.” Because it was exclusively driven over the public highways, the snowplow did not meet this requirement. The order was affirmed and the case was remanded for further proceedings.

Summary and full case available here, courtesy of The Colorado Lawyer.