Summary
In Hardin v. Pinello, 518 P.2d 846 (Colo.App. 1973), it was held that absent any evidence that interference caused by a locked gate would be reasonable across an easement acquired by way of necessity, defendant landowner would not be entitled to maintain such an obstruction, even though the landowners who acquired the benefit of the easement were furnished a key.
Summary of this case from Hall v. ClaytonOpinion
Rehearing Denied Dec. 26, 1973.
Evans, Peterson, Torbet & Briggs, Paul V. Evans, Colorado Springs, for plaintiffs-appellants.
Blakemore McCarty, Colorado Springs, for defendant-appellee.
RULAND, Judge.
Plaintiffs-appellants, Martin D. and Mary Jane Harding, own a certain tract of land entirely surrounded by property owned by defendant-appellee. Plaintiffs commenced this action seeking to establish, Inter alia, a 'way of necessity' across defendant's property. Trial was to the court which found that plaintiffs were entitled to a way of necessity. The court concluded that plaintiffs must compensate defendant for the way of necessity in accordance with Colo.Const. Art. II, Sec. 15. On appeal, plaintiffs seek reversal of the trial court's determination that the way of necessity consists of a right-of-way as distinguished from the fee interest described in 1967 Perm.Supp., C.R.S.1963, 50--1--6(4). Defendant contends that the appeal was not filed in apt time and should be dismissed.
I
Status of the Appeal
Alleging that the procedural steps necessary to perfect an appeal were not taken following entry of judgment by the trial court on February 11, 1972, defendant argues that the appeal should be dismissed. We disagree. Although the trial court entered judgment on February 11, 1972, allowing plaintiffs a 30 foot way of necessity (in lieu of the 60 feet requested), it reserved for later determination the amount of compensation. The judgment did not set forth the specific location of the way of necessity. Pursuant to motion and after taking evidence, the court determined, on June 21, 1972, the amount of compensation to be paid.
On September 8, 1972, plaintiffs filed a motion requesting that the court decree a specific legal description for the way of necessity and determine the plaintiffs' estate or interest in the right-of-way. On October 5, 1972, the court approved a specific description for the way of necessity and concluded that the nature of plaintiffs' interest in the way of necessity had been previously determined as an easement. Plaintiffs' motion for new trial was then filed, denied, and the present appeal was perfected.
The statute governing eminent domain proceedings provides in part:
'The court . . . shall make and cause to be entered in its minutes a rule Describing such lands, real estate, claims, or other property . . . a certified copy of which shall be recorded and indexed in the recorder's office of the proper county, in like manner and with like effect as if it were a deed of conveyance from the owners and parties interested, to the proper parties.' 1967 Perm.Supp., C.R.S.1963, 50--1--6(3) (emphasis added).
A specific legal description of the right-of-way not having been decreed until the trial court's order of October 5, 1972, the judgment did not become final and was not appealable until that date.
II
Status of the Way of Necessity
The trial court concluded that plaintiffs were entitled to a way of necessity consisting of an easement for right-of-way. In seeking reversal of this determination, plaintiffs rely on 1967 Perm.Supp., C.R.S.1963, 50--1--6(4), which provides in part:
'Upon the entry of such rule the petitioner shall become seized in fee Unless a lesser interest shall have been sought . . . and may take possession of, and hold and use the same for the purposes specified in such petition . . ..' (emphasis added).
Prior to amendment of the above quoted statute to include the italicized portion, the word 'fee' has been construed as not necessarily including a fee simple estate, but was deemed to pass only such interest as was reasonably necessary to accomplish the purpose of the condemnation. See Smith Canal or Ditch Co. v. Colorado Ice & Storage Co., 34 Colo. 485, 82 P. 940; Lithgow v. Pearson, 25 Colo.App. 70, 135 P. 759. In addition, a review of plaintiffs' pleadings, and especially plaintiffs' motion to determine compensation, confirms, and the trial court correctly determined, that the interest sought by plaintiffs was an easement rather than a fee simple estate.
This leaves for determination the extent of use which plaintiffs may make of the way of necessity, a subject which was very controversial in the trial court and which generated three separate hearings. The easement which plaintiffs purchased across defendant's property is that of a way of necessity for ingress and egress to their property, as distinguished from an easement acquired by grant or prescription. The owner of the land across which the easement is decreed has the qualified right to put the property to any lawful use for which it is adapted, including the right to graze cattle across this easement without interference from fences which plaintiffs wanted to erect. See Aycock v. Houston Lighting & Power Co., 175 S.W.2d 710 (Tex.Civ.App.). However, in exercising this right the owner of the servient estate must not unreasonably interfere with the superior right of the way of necessity holder. See Smith Canal or Ditch Co. v. Colorado Ice & Storage Co., Supra.
The trial court concluded that defendant should be allowed to install a locked gate at the entrance to the way of necessity, provided plaintiffs were given a key. There were no findings by the trial court to support the conclusion that the interference caused by the locked gate was reasonable. See Smith Canal or Ditch Co. v. Colorado Ice & Storage Co., Supra.
That portion of the judgment which authorized defendant to install a locked gate is set aside. In all other respects the judgment is affirmed. The cause is remanded to the trial court for such further proceedings as may be necessary to determine the relative rights of the parties relative to the use of the right-of-way in conformity with this opinion.
SILVERSTEIN, C.J., and COYTE, J., concur.