Opinion
No. 74-362
Decided April 8, 1975. Rehearing denied April 22, 1975. Certiorari granted June 2, 1975.
From a judgment in which district court found a road to be private and therefore refused to enjoin defendants from restricting the use of the road, plaintiffs appealed.
Affirmed
1. DEEDS — Right-of-Way Reservations — Ambiguous — Trial Court Interpretation — Supported By Evidence. In action alleging that a certain trail was a public road, whether right-of-way reservations in relevant deeds referred to the trial at issue or to some other present or future road was ambiguous, and trial court's interpretation of that ambiguity adversely to plaintiffs was supported by sufficient evidence and thus will not be disturbed on review.
2. ADVERSE POSSESSION — Public Way — Gate — Nearby Property — Evidence — Prescriptive Period Interrupted. Under circumstances presented in action wherein plaintiffs alleged that a certain trail across defendants property was a public way, existence of fence and gate located on land close to defendants' property was properly considered as evidence that the trail was blocked and that the prescriptive time for the establishment of a public road was thereby interrupted; the fact that the gate was on property other than that of defendants was not material.
Appeal from the District Court of Jefferson County, Honorable Roscoe Pile, Judge.
Fred R. Rehmer, for plaintiffs-appellants.
Myrick Newton, P.C., Barrie G. Sullivan, II, for defendants-appellees.
Plaintiffs appeal from a judgment in which the district court found a road to be private and, therefore, refused to enjoin defendants from restricting the use of the road. We affirm.
The defendants own two adjacent five-acre parcels of property in rural Jefferson County several miles south of U.S. Highway 285. A county road, Richmond Hill Road, runs in a southerly direction form U.S. 285, traverses the east portion of defendants' property and terminates south of that land. Trail B, which is a road capable of carrying limited vehicular traffic only, intersects Richmond Hill Road near its southern terminus, proceeds through defendants' land in a generally northwesterly direction, and intersects another county road at a point approximately 1-1/2 miles west of defendants' property.
The plaintiffs own various properties near Trail B in the vicinity of defendants' land. They desire to travel east on Trail B to gain access to Richmond Hill Road and thence to Highway 285, and also to travel west on Trail B to a county road which also joins Highway 285. In 1973, the defendants erected a gate across Trail B on their land near the Richmond Hill Road intersection, but offered keys to some of the plaintiffs. Plaintiffs filed this suit alleging that the trail was a public way.
There were two bases for plaintiffs' suit. First, they claimed the right to use Trail B based upon grants or reservations in recorded deeds executed by predecessors in title to both plaintiffs and defendants. Second, they urge that Trail B has become a public way because of adverse use for a period in excess of 20 consecutive years.
I.
[1] Plaintiffs contend that right-of-way reservations in the deeds of the parties' predecessors in title referred to Trail B, and that, therefore, such reservations inure to the benefit of all successors in title. The deed reservations refer to "a right-of-way for a road through this said property," and "a road providing ingress and egress from the main highway known as 285 to the property adjoining the above described property on the south as now established." Whether this language referred to Trail B, or to a road in the vicinity of what is now the Richmond Hill Road, or to some road to be built in the future, is ambiguous. Based on testimony presented, the trial court interpreted this ambiguity adversely to plaintiffs. There being sufficient evidence to support that interpretation, we will not disturb it on review. See Shamrock Land Cattle Co. v. Hagen, 30 Colo. App. 127, 489 P.2d 607.
II.
[2] Plaintiffs also contend that over 50 years use of the trail through what is now the defendants' property, by "any and all who had need of or cared to use it" established a public road pursuant to § 43-2-201(1)(c), C.R.S. 1973. Testimony supports this contention of use of the road beginning in about 1922. In 1937, however, one Meyers purchased property on both sides of Trail B and erected fences around most of his land. Testimony established that he erected a gate on the eastern edge of his property, about 600 feet west of Richmond Hill Road. There is evidence that that gate across Trail B existed for at least 30 years, and that its purpose was both to keep cattle in and members of the public out.
Stating the question to be one of first impression both in this jurisdiction and elsewhere, plaintiffs contend that the blocking of Trail B by the Meyers gate did not stop the time from running for gaining prescriptive rights on that portion of Trail B that crosses defendants' land. Our research has uncovered no case law on this point. However, the only logical reason to use the portion of Trail B through defendants' land was as a means of movement over much or all of the trail's length, and therefore the fact that the fence was on property other than defendants' is not material. Thus, under the facts of this case, where the Meyers gate was close to defendants' property and there are no intervening properties between it and plaintiffs' land, we conclude that the existence of the gate was properly considered as evidence that the trail was blocked and that the prescriptive time was interrupted.
Besides this evidence indicating a lack of continuous use, the court also found that the use of the trail was permissive only, and that, therefore, the public had not acquired a prescriptive right to use it. Since this finding has a foundation in the record, it is binding on appeal. Broncucia v. McGee, 173 Colo. 22, 475 P.2d 336.
Judgment affirmed.
JUDGE ENOCH and JUDGE PIERCE concur.