Opinion
No. 72-369.
November 20, 1973.
Robinson Henderson, Jack D. Henderson, Denver, for plaintiffs-appellants.
Vranesic Right, Richard H. Right, Denver, for defendants-appellees.
Not Selected for Official Publication.
The plaintiffs brought this action to quiet title to a parcel of real property held by them in trust. The defendants Marie M. Snow and Myron A. Lamb are the owners of a residence and tract of land located adjacent to the plaintiffs' property. Defendants answered and counterclaimed, alleging that they had acquired an easement by prescription across the subject property for ingress and egress to their tract. Following a trial to the court, a decree was entered quieting plaintiffs' title, subject to the prescriptive easement for ingress and egress claimed by defendants. The plaintiffs have appealed. We affirm.
To claim an easement by prescription, it is necessary to establish that the use of the land as a right-of-way has been open, notorious, continuous, and adverse for a period of eighteen years. Segelke v. Atkins, 144 Colo. 558, 357 P.2d 636. The plaintiffs argue that there is insufficient evidence to show that use of the easement was continuous for the statutory period.
Defendants' predecessors, George and Sallie Hickey, acquired title in 1947. The Hickeys conveyed to Logan and Sue Hinton in 1955, and the Hintons ultimately conveyed to defendants in 1966. There was ample testimony from the Hintons, two other disinterested witnesses, and from defendants supporting the trial court's finding that the easement was used as the means of access to defendants' tract from 1947 to September of 1967. The evidence therefore supports the trial court's finding that the right to passage across plaintiffs' property was continuously asserted by successors in title for the required eighteen year period. See Rivera v. Queree, 145 Colo. 146, 358 P.2d 40.
The plaintiffs also contend that the evidence is insufficient to establish the adverse nature of the use of their property. Plaintiffs rely on Horne v. Hopper, 72 Colo. 434, 211 P. 665, which held that twenty years use of a right-of-way is not alone sufficient to establish an easement. However, there the use was demonstrably permissive since it concerned a driveway used jointly by the owner of the servient estate and the claimant. When, as here, an easement has been used solely for ingress and egress to claimant's property for more than eighteen years, there is a presumption that the use was adverse. See Gleason v. Phillips, 172 Colo. 66, 470 P.2d 46; Trueblood v. Pierce, 116 Colo. 221, 179 P.2d 671. Plaintiffs' position is that this presumption was overcome by testimony that the use was permissive. Where evidence contrary to the presumption is presented, whether the use is adverse or permissive is a factual matter to be resolved by the trier of facts. See Miller v. Jarman, 2 Wash.App. 994, 471 P.2d 704; O'Banion v. Borba, 32 Cal.2d 145, 195 P.2d 10. The court, on conflicting evidence, resolved this issue against the plaintiffs and found that the use was adverse. The credibility of the witnesses, the sufficiency, probative effect, and weight of all the evidence, and the inferences and conclusions to be drawn therefrom, were all within the province of the trial court's function as fact finder. Thiele v. State, 30 Colo.App. 491, 495 P.2d 558.
There being sufficient evidence to support the trial court's findings on the controverted elements of easement by prescription, the findings of the trial court will not be set aside.
Judgment affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.