July 18, 2019

Colorado Court of Appeals: City Had Power to Convey Park Not Dedicated to Public Use

The Colorado Court of Appeals issued its opinion in Save Cheyenne v. City of Colorado Springs on Thursday, February 2, 2018.

Land Exchange—Home Rule Cities.

The Colorado Springs City Council adopted a resolution approving a land exchange between the City, on the one hand, and the Broadmoor Hotel, Inc.; the Manitou and Pike’s Peak Railway Company; the COG Land & Development Company; and PF, LLC (collectively, the Broadmoor) on the other hand. As relevant here, a 189.5 acre parcel within Cheyenne Park known as “Strawberry Fields” was transferred to the Broadmoor for construction of a private equestrian center on an 8.5 acre building envelope within the parcel. As a condition of the transfer, the Broadmoor is required to allow continued public access to Strawberry Fields, with the exception of the land within the building envelope. In exchange, the Broadmoor transferred to the City more than 300 acres of land and trail easements to be added to the City’s park system.

Plaintiff, a local nonprofit corporation, filed suit, seeking a declaration that the resolution authorizing the land exchange was null and void, and injunctive relief preventing the land exchange. It also alleged a zoning violation. The City and the Broadmoor moved to dismiss under C.R.C.P. 12(b)(5), for failure to state any claims, and under C.R.C.P. 12(b)(1), arguing that the zoning challenge was unripe. The district court granted the motion.

The court of appeals first rejected defendants’ motion to dismiss plaintiff’s appeal based on mootness. Plaintiff argued that the resolution was an ultra vires act of the City Council because Cheyenne Park had previously been dedicated as a public park, and as a consequence, the City holds the park in trust for the public and cannot convey the park’s land. The Court concluded that no valid statutory dedication of Cheyenne Park occurred, and that any common law dedication was abrogated. The City Council had the power to convey Strawberry Fields when it authorized the land exchange.

Plaintiff next argued that under C.R.S. § 31-15-713(1)(a) no conveyance of the parkland could be made unless it was authorized by a vote in a public election. Colorado Springs is a home rule city and therefore in matters of local concern, a home-rule ordinance supersedes a conflicting state statute. The Colorado Springs City Code provides that land exchanges are to be reviewed by the City Council and approved by resolution. The Code provision applies, and the City was not required to hold an election before making the land transfer.

The court also rejected plaintiff’s argument that the resolution and land exchange violated article XI, section 2 of the Colorado Constitution, which prohibits transfers of city property without consideration. Here, the City received consideration for the parkland.

Plaintiff next contended that the City Council’s resolution approving the land exchange violates the City Charter. The Charter sections at issue only regulate granting franchises and leases on public property and city-owned parklands. The transaction here did not create a lease or franchise on City property, and these provisions do not apply to the conveyance.

Lastly, the court concluded that plaintiff’s claim of zoning violations is not yet ripe for review. The record does not demonstrate that a final zoning decision has been made regarding the permitted uses of Strawberry Fields. The district court properly dismissed this claim.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Easement Deed Valid Even Without Description of Dominant Estate

The Colorado Court of Appeals issued its opinion in City of Lakewood v. Armstrong on Thursday, December 28, 2017.

Real Property—Easements Appurtenant—Dominant Estate—Servient  Estate—Statute of Frauds—Constructive Notice—Extrinsic Evidence—Reverter Clause.

In 1984, Mackey executed a deed (Mackey deed) purporting to convey to Jefferson County a permanent public easement over a portion of the southeast corner of her property. Jefferson County executed a deed to the City of Lakewood (Commissioners deed) conveying the Mackey deed easement using the same legal description. The Commissioners deed contained a reverter clause that required Lakewood to use the easement exclusively for public open space, park, and recreational purposes. In 2011, the Armstrongs bought the property from Mackey’s successor in interest and occupied it. After the Armstrongs attempted to obstruct the easement’s use by locking a gate at one entrance to it, Lakewood filed suit. The district court entered summary judgment for Lakewood, finding that the easement was a valid express easement appurtenant.

On appeal, the Armstrongs asserted that the district court erred in granting Lakewood’s motion for summary judgment because the Commissioners deed violates the statute of frauds and is void for failing to legally describe the easement itself or the dominant estate. An easement does not require the precise description that a possessory interest does. While an instrument must identify with reasonable certainty the easement created and the dominant and servient estates, no particular words are necessary. Here, although the Commissioners deed does not expressly describe a dominant estate, it describes the entire servient estate and describes the easement itself with reasonable certainty and is not rendered invalid by any deficiency in the easement’s description. Further, the easement was recorded in the Jefferson County Clerk and Recorder’s Office over 25 years before the Armstrongs’ purchase of the property. Therefore, the Armstrongs had constructive notice of the easement.

The Armstrongs also contended that the district court impermissibly looked to extrinsic evidence to interpret the Commissioners deed. However, a court may consider extrinsic evidence to determine whether the description of an easement in a deed is reasonably certain or instead is invalid for vagueness. The district court did not err in considering undisputed extrinsic evidence to determine that the easement’s description encompassed the entire servient estate and what, if any, dominant estate the easement served for the purpose of determining whether the easement was identified with reasonable certainty and was therefore valid.

The Armstrongs further contended that the district court erred in enforcing the Commissioners deed because the reverter clause in the deed had been triggered, so the deed expired. The easement’s use is the determinative factor for triggering the reverter clause, not the zoning of the land benefited. Lakewood produced undisputed evidence showing that the dominant estate served by the easement has been continuously used exclusively for public open space, park, and recreational purposes. The reverter clause was not triggered.

The Armstrongs additionally argued that the Commissioners deed was void because Jefferson County did not have the authority to purchase the easement for use by Lakewood. Here, Jefferson County had the authority to purchase an easement for access to a public park or open space owned by Lakewood under its implied powers to promote public projects or public open space and parkland.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

HB 17-1141: Providing Equal Protection from Deprivation of Constitutional Rights by a Federal Employee

On February 1, 2017, Rep. Kimi Lewis introduced HB 17-1141, “Concerning the Malicious Deprivation of Constitutional Rights by a Federal Employee Related to Public Lands.”

The bill makes it illegal for a person who is a federal employee acting under color of law to take any action:

  • That deprives a range allotment owner of any property right appurtenant, inherent, or related to the range allotment, including the right to possess, use, dispose of, exclude other from, or defend the range allotment; and
  • For which the deprivation offends due process or is a physical or regulatory taking without the payment of just compensation.

A violation is an unclassified felony punishable by a fine of up to $500,000 and imprisonment of up to 5 years, or both. An owner who suffers a loss as a result of the person’s actions also has a civil right of action to recover damages.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs Committee. It is scheduled to be heard in committee on February 22, 2017, at 1:30 p.m.

Colorado Court of Appeals: In Prescriptive Easement Case, Mere Silence is Not Proof of Permissive Use

The Colorado Court of Appeals issued its opinion in LR Smith Investments, LLC v. Butler on Thursday, December 18, 2014.

Prescriptive Easement—Quiet Title—Permissive Use.

In this prescriptive easement case, LR Smith Investments, LLC (Smith) claimed prescriptive easements for ingress and egress across two roads owned by Butler. The roads cross a ranch owned by Butler northwest of Craig in Moffat County. The trial court found that Smith and its predecessors continuously, openly, and notoriously used the roads from the mid-1950s until late 2011, when Butler dug ditches preventing access to the roads and thereby precipitated this litigation.

The trial court held that Butler did not meet her burden to overcome the presumption of adversity, and that Smith had satisfied the elements for prescriptive easements to use the roads. The court quieted title to Smith’s nonexclusive right to use the roads for ranching and agricultural purposes, to access the Smith property for hunting and guiding purposes, and for all other similar uses.

On appeal, Butler argued that the court erred in finding that Smith’s use of the road was not permissive, which would defeat Smith’s prescriptive easement claim. The trial court found that Smith’s use of the property was open and notorious for a period in excess of eighteen years. Moreover, the court’s finding that there was no agreement, explicit or implied, between the parties that established that Smith’s use of the roads was permissive was supported by the record. Mere acquiescence or silence is not proof of permissive use. Therefore, Butler did not overcome the presumption of adversity. The judgment was affirmed.

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

Colorado Supreme Court: Adverse Possession of Interest in Water Right Affirmed but Water Court Order Reversed In Part for Reconstruction of Easement to Ensure Water Rights Respected

The Colorado Supreme Court issued its opinion in Archuleta v. Gomez on Monday, December 3, 2012.

Water Law—Adverse Possession of Legal Interest in Water—Enlargement of Consumptive Use—Injunction—Costs—CRCP 54(d)—Attorney Fees—CRS § 13-17-102(4).

This adverse possession dispute is between neighboring property owners—Ralph Archuleta  and Theodore Gomez—over legal interests in water and easement rights for three ditches diverting water from the Huerfano River in the Arkansas River Basin. The Archuleta Ditch extends across Gomez’s upper (westernmost) parcel of irrigated land but does not reach Gomez’s nonadjacent lower parcel or Archuleta’s parcel, which lies immediately to the east of Gomez’s lower parcel. Manzanares Ditch No. 1 cuts across the southeastern corner of Gomez’s lower parcel and the southern part of Archuleta’s parcel. Manzanares Ditch No. 2 runs across the northern part of Gomez’s lower parcel and previously extended to the northern part of Archuleta’s adjoining parcel until Gomez plowed it under, severing the connection to Archuleta’s property.

The Supreme Court affirmed the judgment of the water court in part, concluding that (1) Gomez adversely possessed Archuleta’s legal interests in the Archuleta Ditch and Manzanares Ditch No. 1; (2) awarding costs to Gomez was within the trial court’s discretion under CRCP 54(d); and (3) each party was responsible for its own attorney fees because the water court could reasonably find that Archuleta’s position in the litigation was not substantially frivolous, groundless, or vexatious pursuant to CRS § 13-17-102(4). Because Gomez wrongfully interfered with Archuleta’s water and easement rights for Manzanares Ditch No. 2 and enlarged the use of that ditch’s water, the Court reversed the water court’s judgment in part, directing it to enter an injunction for reconstruction of Manzanares Ditch No. 2 and an easement across the northern part of Gomez’s lower parcel to Archuleta’s adjoining parcel, so that Archuleta will receive the flow of water his legal interest in this ditch entitles him to divert.

Summary and full case available here.

Tenth Circuit: Owner of Oil and Gas Leasehold Rights Can Validly Grant Permission Authorizing Another to Conduct Seismic Exploration of a Mineral Estate

The Tenth Circuit Court of Appeals issued its opinion in Kimzey vs. Flamingo Seismic on Monday, October 15, 2012.

Plaintiffs own surface estates in Oklahoma. Defendant is a company engaged in geophysical data services for the oil and gas industry. Owners of undivided interests in the oil and gas and/or mineral leaseholds underlying Plaintiffs’ lands granted permission to Defendant to conduct seismic exploration. Plaintiffs argued that the owners of the leaseholds had no right to grant Defendant permission to enter the properties, and that such permission was further invalid because the seismic exploration did not benefit the mineral estate. In granting Defendant’s summary judgment motion, the district court noted that it is well-established under Oklahoma law that an owner of mineral interests and/or oil and  gas leasehold rights can validly grant a permit authorizing another person to conduct  seismic exploration of a mineral estate. The district court further found that there was no support in the case law for Plaintiffs’ assertion that there must be a benefit to the mineral estate in order for an owner to have authority to assign his right to conduct seismic operations. The district awarded also Defendant $71,560 in attorney’s fees.

The Tenth Circuit agreed with the district court that  Oklahoma law clearly permits owners of mineral estates to grant access to the surface property in order to conduct seismic exploration. In Oklahoma, the owner of a mineral interest has the right to enter the land to explore for oil and gas. As to attorneys’ fees, after establishing jurisdiction, the Tenth Circuit found no abuse of discretion by the district court in its award of attorneys’ fees. District court’s grant of Defendant’s summary judgment motion and award of attorneys’ fees AFFIRMED.

Colorado Supreme Court: General Assembly Did Not Grant Condemnation Authority to Companies to Construct Petroleum Pipelines

The Colorado Supreme Court issued its opinion in Larson v. Sinclair Transportation Co. on May 21, 2012.

Real Property—Eminent Domain—Condemnation.

The Supreme Court held that the Colorado General Assembly did not grant, either expressly or by clear implication, condemnation authority to companies to construct petroleum pipelines. Accordingly, Sinclair Transportation Company was not entitled, under CRS § 38-5-105, to immediate possession of easements for the construction of its gasoline pipeline. The judgment of the court of appeals was reversed.

Summary and full case available here.

Tenth Circuit: Statute of Limitations for Government Easement Tolled Well in Advance of Plaintiff’s Lawsuit

The Tenth Circuit Court of Appeals published its opinion in George v. United States on Monday, March 5, 2012.

Plaintiff Ann George wanted to build a fence across her property, but the fence blocked a federal easement road accessing the Gila National Forest. The government objected to the fence based on federal regulations. In 2009, Ms. George filed a quiet title action to build the fence. The District Court ruled in favor of the government, holding that the statute of limitations had run on plaintiff’s claim. Plaintiff appealed.

A quiet title action has a statute of limitations of 12 years, and begins to run when “the plaintiff or his predecessor in interest knew or should have known of the claim of the United States.” 28 U.S.C. § 2409a(g). The Secretary of Agriculture published regulations in the Federal Register in 1977 prohibiting anyone from “placing . . . [a] fence . . . without a permit” anywhere in the “National Forest System” or on its “[f]orest development road[s] or trail[s].” 36 C.F.R. §§ 261.10(a); 261.1(a) (1977). Publishing a regulation in the Federal Register must be considered “sufficient to give notice of [its] contents” to “a person subject to or affected by it.” 44 U.S.C. § 1507.

The undisputed facts established that Mr. Hamilton, plaintiff’s predecessor in interest, reached an agreement with the federal government in 1979, in part establishing the easement road across which plaintiff wished to build a fence. Therefore, the statute of limitations began to run in 1979, when Mr. Hamilton “knew or should have known” about the regulations that had been published in 1977 prohibiting the construction of a fence on a forest road. Therefore, in 2009, plaintiff brought her claim 18 years too late.

The case was not decided on the merits. The court’s ruling had only to do with the statute of limitations. The judgment was affirmed.