Opinion
Levine, Pitler & Westerfeld, P.C., W. Terry Ruckriegle, Barclay L. Westerfeld, Denver, for plaintiffs-appellants.
William L. Jones, Idaho Springs, for defendant-appellee.
RULAND, Judge.
Plaintiffs appeal from a judgment dismissing their complaint and granting defendant's counterclaim to restrain plaintiffs from interfering with defendant's use and maintenance of a roadway across plaintiffs' property. We affirm.
The record reflects that plaintiffs are the owners of lots 3 and 4, block B, in Georgetown, Colorado. Plaintiffs acquired title to lot 3 by treasurer's deed in 1955. Defendant purchased lots 6, 7, and 8 in block B in 1966, and access to these lots is by a roadway which crosses plaintiffs' lots. In 1969, defendant installed water and sewer lines along the roadway in order to service a residence which he erected on his property in the spring of 1970, the defendant also improved the roadway by graveling and grading the surface.
Plaintiffs commenced the present action to permanently enjoin defendant from using the roadway, to require defendant to remove the utility lines and restore the roadway to its former condition, and for damages alleged to have resulted from trespass on the roadway. Defendant answered alleging that the roadway was a public thoroughfare and was in substantially the same condition and physical appearance as before defendant acquired title to his property, that defendant had a right of use thereon, and that plaintiffs were barred by laches from proceeding with their claim.
Following a trial to the court, the court determined that the roadway was a public road, was never abandoned, and that, therefore, issuance of the treasurer's deed to plaintiffs did not extinguish the public's right of use. The court also concluded that plaintiffs were barred by laches from requiring defendant to remove the utility lines, and therefore entered judgment on defendant's counterclaim.
In this appeal, plaintiffs first contend that the trial court erred in concluding that the roadway constituted a public road. We disagree.
The roadway was established in 1868 as part of the toll road from Georgetown to Silver Plume. While the evidence was in sharp conflict as to whether the roadway had been abandoned after the road from Georgetown to Silver Plume was relocated by the Colorado State Highway Department, the court found that it had been used continuously, although infrequently, by members of the general public until plaintiffs commenced this action. Since there is evidence to support the trial court's finding on this issue, it may not be disturbed on this appeal. Linley v. Hanson, 173 Colo. 239, 477 P.2d 453. Contrary to plaintiffs' contention, it is not necessary that a governmental subdivision maintain the road to retain its status as a public highway, See C.R.S.1963, 120--1--1(3), and thus the treasurer's deed to plaintiffs did not extinguish the public's right to use the roadway. Silver Plume v. Hudson, 151 Colo. 394, 380 P.2d 59.
Since the trial court found that the public had not abandoned the roadway, it properly concluded that defendant could use the roadway and improve it by graveling and grading the surface. See Dahl v. Rettig, 32 Colo.App. 87, 506 P.2d 1251.
The trial court assumed, without deciding, that the installation of utility lines along or near the roadway constituted an increased use, but barred this claim on the basis of laches. Plaintiffs contend that the doctrine of laches may not be invoked in this case because there are no unusual or extraordinary circumstances which justify its application, and that, therefore, the 20 year statute of limitations is applicable. See C.R.S.1963, 120--1--1(3). We disagree.
The trial court found and the evidence supports a finding that plaintiffs were informed in the fall of 1968 that defendant was going to erect a residence on his property and in the fall of 1969 that he was going to install utilities. Notwithstanding this knowledge, plaintiffs stood by while defendant erected the home, installed utilities, repaired the road, moved in, and built a garage. Hence, the court did not err in applying the doctrine of laches; for as stated in Graff v. Portland Town & Mineral Co., 12 Colo.App. 106, 54 P. 854,
'(I)n the determination of the question as to whether or not the laches of a party asking relief should constitute a bar to his recovery, a court . . . may and should consider, not only lapse of time, but the acts and conduct of the party, if any, indicating either his assent to or acquiescence in the acts of the opposing party of which he then complains, or a waiver of his rights, and the nature and character of the property interests involved and to be affected.'
In addition, installation of water and sewer pipes in a roadway is not dissimilar to construction of an irrigation ditch, and where, as here, there is evidence to support the finding that a party has allowed the construction and use to proceed without objection, the right of way is thus acquired. See Leonard v. Buerger, 130 Colo. 497, 276 P.2d 986; Shrull v. Rapasardi, Colo.App., 517 P.2d 860.
Judgment affirmed.
COYTE and STERNBERG, JJ., concur.