Opinion
June 17, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1151
Myrick & Newton, P.C., Robert O. Newton, Denver, for plaintiff-appellee.
Dosh, DeMoulin, Anderson & Campbell, Robert C. Miller, Denver, for defendant-appellant.
ENOCH, Judge.
Defendant appeals from a judgment of the district court which established a prescriptive easement over a portion of defendant's property along the common boundary line of parcels owned by the parties. We affirm.
The adjoining parcels of real estate are located in the 5100 block of South Santa Fe Drive in Littleton. Plaintiff is engaged in the business of repairing damaged automobiles on property immediately to the north of the parcel on which defendant operates a motel. The property in dispute is a small wedge-shaped area immediately south of a portion of the common boundary and is used by plaintiff in connection with its business as a driveway and for parking cars. Plaintiff originally brought this action claiming title to the parcel by adverse possession. At the close of the case which was tried to the court, plaintiff was allowed to amend his complaint in conformity to the evidence to include a claim for a prescriptive easement.
The trial court rejected the claim for adverse possession but concluded that use of the parcel by plaintiff and its predecessor in interest did establish a prescriptive easement. Defendant contends that the court erroneously applied the theory of easement of way be necessity, that the evidence did not support a finding that plaintiff's use was open, hostile, adverse, and under claim of right, and that use of the easement did not extend continuously for a full 18 years.
At the outset we note that defendant's first argument misstates the theory applied by the court to find an easement. Examination of the conclusions of the court reveal that after rejecting the theory of adverse possession it specifically concluded:
'(T)he use of the plaintiff and its predecessor did, however, by prescription, for a period of eighteen years, utilize the property for access, ingress and egress, as an appurtenant to the use of the buildings constructed on plaintiff's property.'
Reservation of way of necessity is implied when the owner of a parcel of land conveys and grants part thereof to another leaving the remainder without ingress or egress, except over the part conveyed, or conveys land without ingress or egress except over land retained. Wagner v. Fairlamb, 151 Colo. 481, 379 P.2d 165. Such is not the situation in this case, as plaintiff readily admits. Defendant notes that the court considered it important to its conclusion that both parcels involved in this case were once owned in common as a single tract, but the significance of this fact relates to the finding of the court that the original owner represented to plaintiff's predecessor that his lot included the property in dispute. Plaintiff asserted a claim of right to the property based on an assertion that its predecessor had made this same representation when plaintiff purchased the property.
Defendant further contends that the court improperly applied the doctrine of prescriptive easement. A right to an easement by prescription is established by a showing that plaintiffs and their predecessors in interest were in open, notorious, visible and adverse use and occupation of the easement under a claimed right for more than 18 years. Trueblood v. Pierce, 116 Colo. 221, 179 P.2d 671. Whether these elements have been proven is a question for the trier of fact and will not be upset where there is evidence before the court to justify the finding. DeReus v. Peck, 114 Colo. 107, 162 P.2d 404.
There was testimony by plaintiff's predecessor in interest, Roscoe Turner, that he had purchased his parcel in September of 1954 and that the building which now houses plaintiff's business was started sometime in the fall of 1954 and completed by the next spring. Documentary evidence showed that the Turf Motel has been in existence since at least 1952, when it was purchased by defendant and her former husband. Turner further testified that the former owner had represented to him that his parcel included the property now in dispute, and that from the time the building was completed until the sale of the property to plaintiff, he had used the disputed property continuously as access for the delivery of materials to and from the rear of the building. He added that during the construction of the building the disputed property had been used as an alley by construction equipment and for delivering building materials. Both Turner and the defendant testified that on occasion trucks making deliveries to the rear of the building had passed close enough to the motel to knock off pieces of the roof, which had to be repaired. Turner said that he had considered the disputed property to be his, that no one from the motel had said anything to him suggesting that he was not the owner, and that when he sold to plaintiff he had represented the disputed property as going with the parcel.
According to testimony of Bart Birdwell, president of plaintiff corporation, plaintiff has used the property in dispute as a driveway for access to the rear and side entrances to its building and for parking cars since its purchase of the parcel in 1969. He further testified that plaintiff had graded and placed gravel on the disputed property maintaining a driveway to a southern boundary as close as two feet to the motel, which corresponds to a line pointed out to him by Turner as the property line when he purchased the parcel. It was Birdwell's testimony that in 1971 a survey was made which showed the boundary line to be north of that indicated by Turner, but that he continued to use the disputed property as if it were his own and to rely on Turner's representation. On cross-examination Birdwell denied that he had offered to buy or rent portions of the disputed property from defendant, and stated that he had opposed an attempt by defendant to erect a fence along the surveyed boundary line.
Defendant raises a question whether the use of the disputed property extended over a full 18 years. The district court found that the building which now houses plaintiff's business was not completed until the spring of 1955. This suit was brought in December of 1972. Hence the use of the disputed property after the completion of the building was less than 18 years. The district court determined, however, that the disputed property necessarily must have been used for access in the construction of the building starting in the fall of 1954, thereby 'tacking' on the time when the property was used during the construction period in order to meet the 18 year requirement. The testimony of Turner that construction required the use of this disputed property was not contradicted, and it is clear that different uses may be 'tacked' to establish an easement. Trueblood v. Pierce, Supra. The evidence supports the district court's finding that the 18-year period was satisfied.
Possession of an easement for more than 18 years gives rise to a presumption that the holding was adverse. Gleason v. Phillips, 172 Colo. 66, 470 P.2d 46; Allen v. First National Bank, 120 Colo. 275, 208 P.2d 935; Trueblood v. Pierce, Supra. While defendant did present conflicting evidence tending to rebut this presumption by showing permissive use, the evidence in the record discussed above supports the findings of the district court that there was open, notorious, and visible use and occupation under claimed right. We conclude that the court properly applied the doctrine of prescriptive easement.
A further point remains to be considered. In the court's written order it noted that the parties agreed that no adequate legal description of the disputed property had been introduced into evidence at trial. It was agreed that should plaintiff succeed in its action, both parties would stipulate to a legal description to be included in the final decree of the court. Reference to such a stipulated description is made in defendant's brief, but the description does not appear in the record designated on appeal. While we are able to review the merits of this appeal on the basis of the existing record, an accurate legal description is necessary, before a proper decree can be entered, so that the exact location and extent of the easement may be ascertained. DeReus v. Peck, Supra.
Judgment is affirmed, but the cause is remanded so that the decree can be amended to include a proper legal description of the property here in dispute.
SMITH and KELLY, JJ., concur.