Opinion
Rehearing Denied Oct. 3, 1972.
Robert Bruce Miller, Joan A. Clifford, Boulder, for defendant-appellee Claxton D. Hays, Jr.
James H. Snyder, Boulder, Wesley H. Doan, Denver, for plaintiffs-appellants.
Feder & Morris, P. C., Harold A. Feder, Paul D. Rubner, Denver, for defendant-appellee 103 Corp.
DWYER, Judge.
Plaintiffs-appellants brought this appeal after an adverse verdict was returned by a jury. It does not appear from the record that a final judgment has been entered by the court. The defendants-appellees have moved to dismiss this appeal.
The plaintiff Boulder Land, Irrigation and Power Company owns a tract of land located east of and adjacent to Colorado Highway No. 7 in Boulder County, Colorado. Defendant 103 Corporation owns a tract of land lying east of and adjacent to the tract owned by Boulder Land. 103 Corporation and its tenant, the defendant Hays, were using a portion of the tract belonging to Boulder Land as a roadway for access to the highway. Alleging that such use constituted a trespass, Boulder Land brought this action for damages and for injunctive relief against both defendants. Plaintiff William Degge, Jr., one of the principal stockholders in Boulder Land, joined in the action and filed a separate claim against defendants to recover damages for alleged injury to his cattle.
In their answers, defendants alleged that they had a right by prescription to use the road and, further, that the road in question was a public road. Defendant Hays counterclaimed for damages allegedly sustained when plaintiffs blocked the road.
The case was tried to a jury. The only issues submitted to the jury were the defendants' claim to an easement by prescription and their claim that the roadway was a public road. On December 30, 1970, the jury, in answer to an interrogatory, returned the following verdict:
'We the jury find the roadway in question is an established easement.'
Both plaintiffs and defendant 103 Corporation filed motions for judgment notwithstanding the verdict and, in the alternative, for a new trial. Defendant Hays filed a motion to set his claim for damages for trial. On March 22, 1971, these motions were denied by the court, and thereafter, on March 30, 1971, plaintiffs filed their notice of appeal.
The verdict returned by the jury was a special verdict in the form of a written finding upon one issue. C.R.C.P. 49(a). On March 22, 1971, the court suggested to counsel that a survey was necessary, and the court directed counsel for defendants to prepare a written form of judgment containing the description provided by the survey. The written form of judgment required by C.R.C.P. 58 has not been prepared and has not been signed. Furthermore, there are other claims and counterclaims in the action which remain pending and undetermined. The trial court has not entered a final judgment which is reviewable by this court.
C.A.R. 1, insofar as it is applicable to this case, limits the right of an appeal to the appellate court to final judgments. An appeal taken prior to the entry of a final judgment will be dismissed. Abbott v. Poynter, 153 Colo. 147, 385 P.2d 120.
This appeal is premature, and it is accordingly dismissed.
PIERCE and SMITH, JJ., concur.