Opinion
No. 78-165
Decided October 11, 1979. Rehearing denied November 29, 1979. Certiorari denied April 7, 1980.
Plaintiffs appealed dismissal of their action in which they sought an order requiring inclusion of a portion of road abutting their property as part of town's street system.
Affirmed
1. HIGHWAYS — Statute — Not Vest — County Commissioners — Declare Road Public — By Adverse Use — Only Authorizes — Relinquish — Public Claims. Section 43-2-303(1)(b), C.R.S. 1973, does not vest the Board of County Commissioners with the authority to declare that a road has become public by adverse use; rather, it only gives the commissioners the authority to relinquish any claims the public may have in a road.
2. Public Roads — Creation — Deed — Dedication — Eminent Domain — Order — Court Decree — Based — Past Public Use. Public roads may be created by deed dedication, a rule and order entered in an eminent domain proceeding, or by court decree when past public use justifies such declaration.
3. Trial Court Determination — Public Use of Road — Casual — Intermittent — Permissive — Conclusion — Not Public Road — Adverse Use Statute — Correct. Where, on supporting evidence, trial court determined that use of road by the public had been casual, intermittent, and generally with the permission of the owners, it correctly concluded that the road had not become public under statute specifying that private lands used adversely by the public without interruption or objection for twenty consecutive years become public roads.
4. No Evidence — Road — Dedicated to Public — Not Otherwise Qualified — — Public Road — Not Become So — Town's Annexation — Land Containing It. Where there was no evidence that road had been dedicated to the public use pursuant to statute or that it otherwise qualified as a public road, it was not a public road prior to town's annexation of the property over which it ran, and it did not become so by virtue of that annexation.
Appeal from the District Court of Larimer County, Honorable John-David Sullivan, Judge.
Joseph P. Jenkins, P.C., for plaintiffs-appellants.
Cogswell, Chilson, Dominick Whitelaw, John H. Chilson, James E. Heiser, for defendant and third-party plaintiff-appellee.
Plaintiffs appeal dismissal of their action in which they sought an order requiring inclusion of a portion of the "Old Fall River Road" or the "James-McIntyre Road" as part of the street system of the town of Estes Park. We affirm.
In 1949, after relocation of U.S. Highway 34 along a more southern route, the State Highway Commission abandoned a portion of the "Old Fall River Road." The Board of County Commissioners did not adopt a resolution within ninety days thereafter declaring that the abandoned portion was necessary for use as a public highway. Thus, under C.S.A. 1935 c. 143 § 112 (1949 Repl. Vol.) (Substantially the same as § 43-2-106, C.R.S. 1973), title to the abandoned portion of the highway reverted to the owners of the land through which it ran.
In 1953, the county declared which roads would thereafter comprise the county road system, but this resolution did not designate the "Old Fall River Road" as a primary or secondary road in the county. In 1972, however, the county, by resolution, purported to vacate a portion of the "Old Fall River Road." On January 3, 1974, plaintiffs acquired title to a tract of land that abutted the "Old Fall River Road." This action was commenced late in 1974, subsequent to the town's annexation of plaintiffs' property.
Plaintiffs assert that the 1972 vacation resolution by the Board of County Commissioners, a resolution which purported to find that the road in question was a public road, is binding on the town. Thus, they assert, annexation made the "Old Fall River Road" part of the town's street system. We disagree.
[1] Section 43-2-303(1)(b), C.R.S. 1973, authorizes the Board of County Commissioners to vacate a public roadway or any part thereof. It is true that, in 1972, the County Commissioners in a proceeding pursuant to that statute, at the request of a different property owner whose land abutted another portion of the road, purported to find that the "Old Fall River Road" was public. This finding was made in order to support the Board's resolution purporting to vacate a portion of the same. However, we hold that § 43-2-303(1)(b), C.R.S. 1973, does not vest the Board of County Commissioners with the authority to declare that a road has become public by adverse use. Rather, this section only gives commissioners the authority to relinquish any claims the public may have in a road.
[2] Public roads may be created by deed, dedication, a rule and order entered in an eminent domain proceeding, or by court decree when past public use justifies such declaration. In this connection, § 43-2-201(1)(c), C.R.S. 1973, provides that all roads over private lands that have been used adversely by the public without interruption or objection for twenty consecutive years become public roads.
Here, after a full trial on the adverse user issue, the trial court found that the use of the "Old Fall River Road" by members of the public had been casual, intermittent, and generally with the permission of the landowners. Since this finding is supported by substantial evidence, it is binding on review. Broncucia v. McGee, 173 Colo. 22, 475 P.2d 336 (1970).
[3] Because the use was permissive it cannot be adverse. Lang v. Jones, 191 Colo. 313, 552 P.2d 497 (1976). See also Boulder Medical Arts, Inc. v. Waldron, 31 Colo. App. 215, 500 P.2d 170 (1972). Furthermore, because the use was only intermittent, and not continuous, it does not meet the requirements of the statute. People ex rel. Mayer v. San Louis Valley Land Cattle Co., 90 Colo. 23, 5 P.2d 873 (1931). Therefore, the trial court was correct in determining that the road did not become a public road under § 43-2-201(1)(c), C.R.S. 1973.
[4] There was no evidence that the "Old Fall River Road" had been dedicated to the public use pursuant to § 43-2-201(1)(a), C.R.S. 1973, or that it otherwise qualified as a public road. Thus, since the road was not public prior to annexation, it did not become public because of the annexation. Cf. Perlmutter Associates, Inc. v. Northglenn, 35 Colo. App. 355, 534 P.2d 349 (1975).
Having concluded that the trial court committed no error in finding that the road was not public, and thus dismissing the case, we need not reach the other issue raised in the appellant's brief.
Judgment affirmed.
CHIEF JUDGE ENOCH and JUDGE PIERCE concur.