Opinion
Jan. 2, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Arnold, Ross & Leh, Baxter W. Arnold, Sterling, for plaintiff-appellee.
Albert W. Gebauer, Denver, for defendant-appellant.
COYTE, Judge.
This is an appeal from a judgment which restrains defendant, its agents and employees from interfering with plaintiff's use of a roadway across defendant's property and a judgment for $1,500 in favor of plaintiff for damages suffered by plaintiff because defendant locked a gate on that roadway thereby depriving plaintiff of access to his property. We affirm.
Plaintiff is the owner of the East 1/2 of Section 24, Township 11 N., Range 46 W., Sedgwick County, except for a 75-foot strip along the north side thereof owned by the State Highway Department. Defendant owns all of the land surrounding plaintiff's land except the 75-foot strip.
Prior to the time that plaintiff's land was patented and fenced in 1920, there was an established trail which entered defendant's property at a gate located at the southeast corner of Section 25, proceeded northerly through Section 25, owned by defendant, to the south side of the East 1/2 of Section 24, through the East 1/2 of Section 24 (plaintiff's property) and then on through Section 13 (defendant's property) to the north.
There is evidence in the record that plaintiff had had ingress and egress to his property by means of the trail coming from the south or by means of the trail coming from the north, but that the main route of ingress and egress was through the route from the north. In 1966, plaintiff sold the north 75 feet of his property, including the right of access, to the State Highway Department.
The record reveals that in 1962 defendant, through its agents and employees, locked the gate at the southeast corner of Section 25 and told plaintiff that this was done in order to keep poachers off the property and to keep persons from using a lake in the area. Plaintiff agreed to the locking of the gate, but in the spring of 1969 he wanted the gate unlocked so that he could use and improve the road to his place. Defendant refused, and plaintiff had no means of access to his property during 1969, 1970, and 1971. This action was filed by plaintiff in the spring or 1970, seeking to restrain and permanently enjoin defendant from locking the gate or obstructing the use of the road and to obtain a judgment against defendant for damages because of his being deprived of the use of his property. Defendant generally denied the allegations of plaintiff's complaint, and affirmatively alleged that when plaintiff sold a portion of his property to the State Highway Department he had sold all access rights to his property.
The trial court found that plaintiff is the owner of an easement by prescription across Section 25, and entered the restraining order and money judgment. Defendant appeals, contending that the evidence does not support the judgment.
Defendant contends that plaintiff sold the only right of access which he had to his property when he sold the parcel and right to access along the north 75 feet of his property. This sale did not affect the access right from the south and is immaterial as far as the issues herein are concerned.
There had been several prior owners of the E 1/2 of Section 24 which plaintiff purchased in 1950. Defendant's agents and employees testified, and the court found, that neither the defendant nor its predecessors in interest had ever given permission to anyone to use the road in question, and defendant's agents and employees testified that they had never seen anyone using the road. Plaintiff's witnesses testified generally to calling on the owners of the East 1/2 of Section 24 at various times through-out the years and that they came and went as they pleased along the road through Section 25. Plaintiff testified that from 1950 until he requested that the gate be unlocked, he had used the southern entry to his property as he desired.
As stated in Trueblood v. Pierce, 116 Colo. 221, 179 P.2d 671:
'Plaintiffs and their predecessors in title have been in possession of the easement for more than 18 years; there is, as a result thereof, a presumption that their holding was adverse. Haines v. Marshall, 67 Colo. 28, 185 P. 651; F. C. Ayers Merc. Co. v. Union Pacific R. Co., 8 Cir., 16 F.2d 395; Shonafelt v. Busath, 66 Cal.App.2d 5, 151 P.2d 873; Friend v. Holcombe, 196 Okl. 111, 162 P.2d 1008; Ferguson v. Standley, 89 Mont. 489, 300 P. 245; 2 C.J.S., Adverse Possession, s 216, p. 822; consequently, it was incumbent upon defendants to overcome this presumption . . ..'
The evidence supports the finding of the trial court that plaintiff and his predecessors in interest had used the easement openly, notoriously, continuously, and adversely to the defendant and its predecessors in interest for the prescribed period. See Trueblood v. Pierce, Supra. In arguing against this finding, the defendant contends that the trail may have been used by an occasional trespasser but not by anyone openly, notoriously, continuously, and adversely against them. This argument is answered in Gleason v. Phillips, 172 Colo. 66, 470 P.2d 46:
'In so arguing, the plaintiffs have confused the requirement of continuous use with the degree and type of use claimed by the defendants. As this Court noted in Rivera v. Queree, 145 Colo. 146, 358 P.2d 40, the requirement of continuous possession in order to establish a right-of-way by prescription does not mean that the claimant must physically possess it every moment of the day. The nature of the right claimed is the right to passage whenever passage is desired. It is this right which must be continuously asserted for a period of eighteen years.'
As to the damages awarded, it is undisputed that defendant denied access to plaintiff during 1969, 1970, and 1971. There was testimony both as to the loss plaintiff suffered by being unable to pasture his property and also as to the reasonable rental value of said property. This evidence supports the damages award of $1,500.
The trial court having resolved conflicting evidence in favor of plaintiff Schmidt on both the easement issue and the amount of damages to be awarded, its findings must be affirmed. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453.
Judgment affirmed.
ENOCH and PIERCE, JJ., concur.