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DaJudge
June 16th, 2004, 10:02 AM
CO Court of Appeals held the remaining sections of this to be a public road. The original road ran from Buena Vista to Leadville on the east bank of the Arkansas River. This litigation covers the section from Granite (just south of Twin Lakes) north to Malta (where US 24 crosses from the west bank to the east bank of the Arkansas.

http://www.courts.state.co.us/coa/opinion/2004q2/02CA1727.doc

Willie G
June 16th, 2004, 04:02 PM
A well-reasoned opinion that should be of use to several attorneys now engaged in such litigation. Unfortunately, the attorneys probably do not read this Board. I suspect, however, that their clients do. (Boslough? VB?)

Some quotes: (the references to OSR are to the Old Stage Road in question)

"Here, the trial court concluded that the OSR became a public road pursuant to ? 43-2-201(1)(c) by the 1920s because, by that time, the public used the OSR, under a claim of right, adversely and without interruption or objection for at least twenty consecutive years subsequent to 1878. Once the OSR became a public road, it remained so until vacated or abandoned. See Bd. of County Comm?rs v. Kobobel, 74 P.3d 401 (Colo. App. 2002).
Whether the OSR as it now exists through the subject property is sufficient to establish a public road pursuant to ? 43-2-201(1)(c) does not matter here."


"The claiming party must establish that a public entity took some overt action or actions that gave the property owner notice of the public?s claim of right. Such an overt act may include showing the road on a public road system map, using the road for mail delivery or school buses, expending public funds for the maintenance or improvement of the road, posting signage indicating a public road, or installing drainage systems for the road. Such an act establishing notice begins the prescriptive period. McIntyre v. Bd. of County Comm?rs, supra."


"Here, it is undisputed that the OSR appeared on several county road maps during, or just after, the prescriptive period. A 1912 county map depicted a road on the east side of the river from south of Two Bit Gulch to Malta. A 1936 map of Lake County prepared by the Colorado State Highway Department as a part of a State-Wide Highway Planning Survey depicted a road on the east side of, and adjacent to, the river from the county line to Empire Gulch where it merged with the highway.
It is also undisputed that the OSR appeared on United States Geological Survey (USGS) maps during, or just after, the prescriptive period. A map of Township 11 South, Range 80 West, of the 6th Principal Meridian prepared in 1877 by the Surveyor General?s Office showed a road named ?Road from California Gulch to Granite? on the east side of the river from just south of Spring Creek (S) to just south of Spring Creek (N). A map of the Leadville Quadrangle prepared by the USGS in 1891 (reprinted in 1905, 1930, and 1947) based on surveys performed in 1879, 1880, 1881, and 1889 depicted a road on the east side, and adjacent to, the river from Granite to Malta. In addition, USGS maps of the Mt. Elbert Quadrangle prepared in 1935, 1938 (reprinted in 1944), and 1939, based on surveys performed in 1927 and 1935, depicted a road on the east side of, and adjacent to, the river from Granite to Malta. Finally, a map of the Leadville Quadrangle prepared by the Army Corps of Engineers in 1942, based on previous USGS, United States Forest Service, highway, and other maps depicted an unimproved road on the east side of the river from Granite to near Empire Gulch where it merged with the highway."


"To be adverse, the use should be part of a pattern of general public use and not sporadic in nature. Bd. of County Comm?rs v. Flickinger, supra; see McIntyre v. Bd. of County Comm?rs, supra. However, in prescriptive easement cases, intermittent use on a long-term basis satisfied the requirement of adverse use. Weisiger v. Harbour, 62 P.3d 1069 (Colo. App. 2002). Further, public use to access fishing, hunting, and other recreational activities has satisfied the requirement of adverse use. See Bd. of County Comm?rs v. Flickinger, supra; Bd. of County Comm?rs v. White & Welch Co., 754 P.2d 770 (Colo. App. 1988). "


"While no Colorado state appellate court has specifically addressed this issue, the Tenth Circuit Court of Appeals discussed whether recording statutes apply to ? 43-2-201(1)(c) and concluded that ? 43-2-201(1)(c) does not require that ?public use be based on color of title or properly recorded resolutions.? Bd. of County Comm?rs v. W.H.I., Inc., supra, 992 F.2d at 1066 (applying Colorado law); see McIntyre v. Bd. of County Comm?rs, supra (citing with approval to the quoted language). Other jurisdictions have reached the same conclusion in regard to establishing a public road through adverse use, title by adverse possession, or easements by prescription. See Jones v. Harmon, 175 Cal. App. 2d 869, 878, 1 Cal. Rptr. 192, 198 (1959)(?[i]t is hornbook law that an easement or profit created by prescription is not within the scope of the recording statutes?); Lockey v. City of Bozeman, 113 P. 286, 289 (Mont. 1910)(?a public highway may be established by prescription, without color of title, by proof of travel over it by the
public, as a public highway, for the statutory period?); Crescent Harbor Water Co. v. Lyseng, 753 P.2d 555 (Wash. Ct. App. 1988)(title acquired by adverse possession and an easement by prescription are not affected by recording statutes)."


"We agree with the trial court that those cases do not discuss whether public notice is required to establish a public road by adverse use pursuant to ? 43-2-201(1)(c). Further, we conclude that because the OSR became a public road by adverse use and not by purchase, dedication, grant, or reservation, it is axiomatic that there would be no record notice and that none is required."


"Abandonment of a public road requires proof of intent to abandon by official and public acts and proof of nonuse. Heath v. Parker, supra. Abandonment by the public will not be implied from nonuse of the road when the public need has not required such a use."


Engarde!

:D

vb
June 17th, 2004, 06:06 AM
unrebutted testimony indicates that even after the highway was constructed in the 1920s, the osr was used a s an alternate route for a significant period of time and was later used to access hunting, fishing, and backcountry. there was, therefore, evidence supporting the trial courts findings and conclutions that the public's use of osr was adverse.


seems as though these judges see recreation as a valid public use and that it there fore does make for adverse use . which makes THE ROAD A PUBLIC ROAD.

id say that it looks as though the teller judge and the judges hereing the swfwda case should re visit their possitions.
this is a good common sense ruleing. if the public has used the road for that period. any way you slice it , it is a public road.

hey knobby! wake up dude

vb
June 17th, 2004, 06:11 AM
"Here, the trial court concluded that the OSR became a public road pursuant to ? 43-2-201(1)(c) by the 1920s because, by that time, the public used the OSR, under a claim of right, adversely and without interruption or objection for at least twenty consecutive years subsequent to 1878. Once the OSR became a public road, it remained so until vacated or abandoned. See Bd. of County Comm?rs v. Kobobel, 74 P.3d 401 (Colo. App. 2002).
Whether the OSR as it now exists through the subject property is sufficient to establish a public road pursuant to ? 43-2-201(1)(c) does not matter here."


interesting to me because. i see some trying to work the most resent 20 years in other cases.
in cases such as barking dog this rational would kick boslough completely out of the water since the road was used very heavy by the public in its early fifty years

Steve
June 17th, 2004, 09:03 AM
vb, looks the lawyer working the Barking Dog issue needs this ruling, as it can be used as a precedent.