Opinion
Feb. 14, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Hopkins, Hurth & Yeager, John M. Yeager, Boulder, for plaintiff-appellee.
Albert B. Dawkins, Denver, for defendant-appellant.
SMITH, Judge.
The County Commissioners of Gilpin County instituted this action seeking to permanently enjoin Douglas Ball from erecting or maintaining barricades across Dory Hill Road in that county in such a manner as to preclude the general public from using it as a public thoroughfare. Defendant, a rancher whose land is traversed by the road, answered the complaint denying that the portion of Dory Hill Road in question is a public highway, and alleging that if it had ever been a public highway, the public had not used the road since 1936 and that consequently it had been abandoned. Trial to the court resulted in the entry of the permanent injunction sought by plaintiff. Defendant appeals. We affirm.
The trial court found that as early as 1910 and until 1936 the Dory Hill Road was the main public thoroughfare from Black Hawk to Rollinsville in Gilpin County. The court therefore concluded that the road had become a public highway as defined in C.R.S.1963, 120--1--1(3), and C.R.S.1963, 120--3--2. The court further found that even since the construction of Highway 119 in 1936, a new road between Rollinsville and Black Hawk, the public has used and still continues to use the road on an occasional basis. The court additionally found that the portion of Dory Hill Road in question has always been and still continues to be designated as a part of the county highway system. The court found from the evidence that the Gilpin County Commissioners never intended to abandon the road, and concluded that no abandonment had in fact taken place.
In his appeal, defendant accepts the conclusion of the court that Dory Hill Road was once a public highway. He asserts, however, that the court's conclusion that the road had not been abandoned was erroneous. It is defendant's theory that Dory Hill Road lost its public character because of his maintenance of gates across it and because of non-use by the public for more than 20 years.
Abandonment of a public road requires proof of non-use coupled with affirmative evidence of intention to abandon. Koenig v. Gaines, 165 Colo. 371, 440 P.2d 155. Whether abandonment has taken place is a question of fact. Shively v. Board of County Commissioners, 159 Colo. 353, 411 P.2d 782. Therefore, the only question before us is whether the findings of fact of the trial court are supported by the evidence.
The determinative finding of the trial court, that there was no intention to abandon by the county, was substantiated by the evidence. Indeed, the testimony established that the part of Dory Hill Road at issue in the action has been and continues to be designated as part of the county road system for which the county has received State Highway Users Tax fund allocations annually since 1953.
We affirm the judgment of the trial court.
SILVERSTEIN, C.J., and PIERCE, J., concur.