25CA0289 Bernhardt v Thompson 05-07-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0289 Gilpin County District Court No. 21CV30002 Honorable Todd L. Vriesman, Judge
Eric Bernhardt, Melanie Bernhardt, and Colleen Bernhardt,
Plaintiffs-Appellees,
v.
Kenneth Russell Thompson,
Defendant-Appellant.
JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division VI Opinion by JUDGE YUN Grove and Schock, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 7, 2026
Murr Siler Eckels Delaney, PC, Joseph A. Murr, Daniel R. Delaney, Denver, Colorado, for Plaintiffs-Appellees
Levin Sitcoff PC, Bradley A. Levin, Gideon S. Irving, Denver, Colorado, for Defendant-Appellant ¶1 In this action to determine the existence of an implied
easement, the defendant, Kenneth Russell Thompson, appeals the
district court’s judgment in favor of the plaintiffs, Eric Bernhardt,
Melanie Bernhardt, and Colleen Bernhardt, on their claims for
trespass, permanent injunctive relief, quiet title, and declaratory
relief. Thompson contends the court erred by finding that (1) an
easement implied by prior use serves the Bernhardts’ property and
burdens his property; (2) he had notice of the easement; and (3) the
easement was not extinguished by adverse possession. He further
contends the court erred by failing to grant full relief pursuant to
C.R.C.P. 105 when it entered its final judgment and decree. We
disagree with all but the last of these contentions. We therefore
affirm the judgment and remand the case to the district court for
further proceedings consistent with this opinion.
I. Background
¶2 We draw the following factual background from the record and
the district court’s order issued after a bench trial. The court’s
findings have record support.
¶3 The illustration below depicts land in Gilpin County that was
owned in the 1960s by Albert and Matilda Stahn.
1 The Subject Land Labeled with Current Owners
A Gilpin County road intersects the parcel labeled Section 3
diagonally. The Stahns constructed a residence in the southern
portion of the parcel labeled Section 2 — the property now owned
by the Bernhardts. To access the county road, they built a
driveway across Section 3, connecting their new home in Section 2
to the county road. This driveway — hereafter referred to as the
North Road — marks the approximate location of the disputed
easement, which we will refer to as the North Road easement.
2 ¶4 The Stahns later conveyed the southern portion of Section 2
containing their home to Adolf and Verlyn Wilhelm. The 1972
warranty deed did not describe an easement for access by the
Wilhelms over the Stahns’ property, but the Wilhelms nonetheless
used the North Road across Section 3 as the exclusive means of
accessing their property.
¶5 In 1978, both the Stahns and the Wilhelms sold their land.
First, the Stahns sold the southern portion of Section 3 to Roland
Morrison. Their April 5, 1978, deed to Morrison created a fifty-foot-
wide access easement along the shared border, with twenty-five feet
on the Morrison parcel and twenty-five feet on the Stahns’
remaining parcel. We will refer to the road dividing these properties
as the South Road and this easement as the South Road easement.
The Stahns did not record the South Road easement against their
own property.
¶6 Next, the Stahns prepared to sell their remaining property —
the northern portions of Section 3 and Section 2, now owned by
Thompson. Learning of the upcoming sale, the Wilhelms
commissioned a survey of the North Road from the county road
3 across Section 3 to their home in the southern portion of Section 2.
The Wilhelms recorded a certificate of survey on July 31, 1978.
¶7 Before the Stahns sold their remaining property, the Wilhelms
asked the Stahns to formally recognize the North Road easement.
On August 1, 1978, the Stahns executed a new warranty deed to
the Wilhelms for their previously purchased property. The 1978
Wilhelm deed expressly granted an easement over the Stahns’
property in Section 3, with a description approximately matching
the North Road as surveyed. But — as with the South Road
easement — the Stahns did not record the North Road easement
against their own property.
¶8 That same day, the Stahns sold their remaining property to
Russell Pershing. The Stahns’ warranty deed to Pershing contained
standard language that title was “subject to easements . . . of
record,” but it did not specifically acknowledge either the North
Road easement (which the Stahns had described that same day in
the 1978 Wilhelm deed) or the South Road easement. It did,
however, describe an “easement for ingress and egress over a strip
of land 20 feet wide” in the approximate location of the North Road.
We will refer to this easement as the Pershing easement. The
4 description of the Pershing easement substantially matches the
description of the North Road easement in the 1978 Wilhelm deed
until the final 128 feet, where the Pershing easement veers north.
¶9 The Wilhelms’ property is now owned by the Bernhardts.
Their title identifies the North Road easement. The Pershing
property is now owned by Thompson. His title identifies the
Pershing easement but not the North Road easement.
¶ 10 The Bernhardts sued Thompson in 2021, alleging that he was
“blocking the [North Road] with boulders, concrete barriers and
other debris, making it unusable for ingress to and egress from”
their property. After a two-day bench trial in 2022, the district
court found that “an easement in the location of the North Road has
existed since 1972 over the land that is now owned by Thompson in
Section 3 . . . . The North Road easement serves the Bernhardt
Property and burdens the Thompson Property.” The court quieted
title in favor of the Bernhardts and permanently enjoined
Thompson from blocking the North Road easement.
¶ 11 Thompson moved for reconsideration, which the court denied.
In its final judgment and decree on December 30, 2024, the court
adopted a new legal description of the North Road easement
5 prepared by a registered professional land surveyor and ordered
that “[t]his legal description of the North Road Easement would
supersede and replace all previous descriptions.”
¶ 12 Thompson now appeals.
II. Standard of Review
¶ 13 When a court enters judgment following a bench trial, that
judgment presents a mixed question of law and fact. State Farm
Mut. Auto. Ins. Co. v. Johnson, 2017 CO 68, ¶ 12. We review the
court’s legal conclusions de novo and its factual findings for clear
error. Id.; May v. Petersen, 2020 COA 75, ¶ 10. We will not disturb
the court’s factual findings unless there is no evidence in the record
to support them. Petersen, ¶ 10.
¶ 14 “It is the responsibility of the trial court as the trier of fact to
determine the credibility of the witnesses and the sufficiency,
probative effect, and weight of the evidence.” In re Marriage of
Hatton, 160 P.3d 326, 330 (Colo. App. 2007). It is not our role to
reweigh the evidence. Gagne v. Gagne, 2019 COA 42, ¶ 51. And we
draw all reasonable inferences from the evidence in favor of the
prevailing party, including inferences and conclusions drawn from
6 conflicting evidence. See Weisiger v. Harbour, 62 P.3d 1069, 1071
(Colo. App. 2002).
III. Easement Implied by Prior Use
¶ 15 Thompson contends the district court erred by finding that the
Bernhardts proved all the elements required to establish an
easement implied by prior use. We are not persuaded.
¶ 16 To establish an easement implied by prior use, a party must
demonstrate that (1) the servient and dominant estates were once
under common ownership; (2) the right alleged was exercised prior
to the severance of the estate; (3) the use of the right was not
merely temporary; (4) the continuation of this use was reasonably
necessary to the enjoyment of the parcel; and (5) a contrary
intention is neither expressed nor implied. Lobato v. Taylor,
71 P.3d 938, 951 (Colo. 2002). Only the third, fourth, and fifth
elements are at issue here.
¶ 17 In addressing the third and fourth elements, the district court
found that
[t]he Stahns lived in the cabin on [what would become] the Bernhardt Property year-round and accessed that cabin via the North Road every day. . . . No other route was used to
7 access the home when occupied by the Stahns . . . .
Thompson argues that these findings lack record support —
specifically, that no trial testimony addressed “how long, how
regularly, or for what purposes the Stahns did or did not use the
North Road.”
¶ 18 The record belies Thompson’s argument. The district court
heard testimony about the Stahns’ use of the North Road from
Verlyn Wilhelm, now known as Verlyn Distel.1 Ms. Wilhelm testified
that she met the Stahns when they took the Wilhelms to see the
house. When asked whether, at the time of the purchase, she
understood that she and her husband would use the North Road to
access the property, she confirmed that she did, stating:
Yeah. Basically because . . . that’s the road [the Stahns] took us up on when they showed us the house. And that was the road I believe they were using at the time because they never referred to [any other].
After purchasing the property, according to Ms. Wilhelm, she and
her husband used the North Road every day. On redirect
1 For ease of understanding, we will refer to Ms. Distel as
Ms. Wilhelm, her name at the relevant time period. We intend no disrespect by referring to Ms. Distel in this manner.
8 examination, she again testified that the Stahns had used the North
Road to reach their house before the Wilhelms purchased it and
that her own use of the North Road was “consistent” with the
Stahns’ use. She also testified that while the South Road existed in
1972, she “never” used it for access because it was “rough,” “rocky,”
and “just too steep.”
¶ 19 Ms. Wilhelm’s testimony that her daily, exclusive use of the
North Road was “consistent” with the Stahns’ directly supports the
district court’s finding that the Stahns “accessed that cabin via the
North Road every day” and that “[n]o other route was used to access
the home when occupied by the Stahns.”
¶ 20 Thompson further argues that the Stahns’ exclusive use of the
North Road is insufficient to prove the element of reasonable
necessity because it is conceivable that the Stahns could have used
the South Road but chose not to. But although Ms. Wilhelm
testified that both roads were “mountainous” and neither was “a
picnic,” she described the South Road as “just too steep” to use for
access. And while Ms. Wilhelm testified that the South Road
existed in 1972, the evidence on this point was conflicting. Russell
Pershing, who purchased what would become Thompson’s property
9 from the Stahns in 1978, testified that he did not recall the South
Road existing when he owned the property. The district court
appears to have credited Pershing’s testimony, finding that “the
South Road did not exist formally . . . in 1972.”
¶ 21 Drawing all reasonable inferences in favor of the prevailing
party, including inferences from conflicting evidence, see Weisiger,
62 P.3d at 1071, we conclude that the record supports the district
court’s finding that the Bernhardts established the third and fourth
elements by a preponderance of the evidence.
¶ 22 Turning to the fifth element — that a contrary intention is
neither expressed nor implied — Thompson argues that the absence
of any reference to the North Road easement in the 1972 Wilhelm
deed “shows that [the Stahns] didn’t intend to create an easement
in 1972,” when the parcels were severed from common ownership.
But the record supports the district court’s finding that the Stahns’
conduct demonstrates their intent more reliably than their
“amateur attempt at legal implementation.” Ms. Wilhelm testified
that the Stahns used the North Road as the exclusive means of
access to their house and took the Wilhelms to see the house via
the North Road.
10 ¶ 23 The Stahns’ later conduct further supports their intent to
create an easement in 1972. In 1978, when the Wilhelms asked
that the North Road easement be formally recognized before the sale
of the Stahns’ remaining property, the Stahns executed a new
warranty deed expressly memorializing it. As the district court
found, “[t]he 1978 second deed from the Stahns confirmed in
writing this prior use and the parties’ intent” in 1972. Contrary to
Thompson’s argument that the district court erred by considering
the 1978 deed because “the parties’ intent in 1978 is irrelevant,”
the court’s order makes clear that it considered the 1978 deed only
as additional evidence of the parties’ intent in 1972.
¶ 24 Drawing all reasonable inferences in favor of the prevailing
party, we conclude the record supports the district court’s finding
that the Bernhardts established the fifth element by a
preponderance of the evidence.
¶ 25 We therefore discern no error in the court’s finding that the
easement implied by prior use.
11 IV. Notice
¶ 26 Thompson contends the district court erred by finding that he
had notice of the easement. We disagree.
¶ 27 In Colorado, there are three types of notice: actual,
constructive, and inquiry. Martinez v. Affordable Hous. Network,
Inc., 123 P.3d 1201, 1206 (Colo. 2005). “Actual notice occurs when
a party has actual knowledge of a title defect.” Id. Constructive
notice occurs when “a [party’s] search of the title records would
have revealed [the] defect.” Id. Inquiry notice arises when “a party
becomes aware or should have become aware of certain facts which,
if investigated, would reveal the claim of another.” Id. (quoting
Franklin Bank, N.A. v. Bowling, 74 P.3d 308, 313 (Colo. 2003)).
¶ 28 Inquiry “notice will not be ‘imputed to a purchaser if a
reasonable search would prove, or would have proven, futile.’” Id.
(quoting Littlefield v. Bamberger, 32 P.3d 615, 619 (Colo. App.
2001)). But if circumstances exist that would arouse the
“suspicions of an ordinary purchaser,” then “[i]nquiry notice
imputes knowledge” upon the purchaser. Id. at 1207; see Lobato v.
Taylor, 70 P.3d 1152, 1163 (Colo. 2003) (“Although, generally, only
documents within a chain of title must be searched to determine
12 relevant interests in real property, more is required where it
appears that outside interests may affect title. In such instances,
an individual has a duty to investigate these other interests and is
charged with knowledge of the facts to which the investigation
would have led.”).
¶ 29 The district court found that Thompson had inquiry notice of
the North Road easement, for two reasons. First, Thompson’s deed
contained “language . . . that incorporates an easement in the same
location” as the North Road easement. Although this language
refers to the Pershing easement rather than the North Road
easement, the two are substantially identical except for the last 128
feet. And although the Pershing easement did not extend to the
Bernhardts’ property, Thompson reiterated his deposition testimony
at trial that the person who sold him his property told him the
easement benefitted his neighbors — that is, the Bernhardts. He
also testified that he had considered whether the Bernhardts held
an easement over his property and concluded that, if they did, they
had abandoned it.
¶ 30 Second, the district court found that the undisputed physical
facts independently gave rise to inquiry notice. Specifically,
13 [a] physical North Drive is cut into the land. A metal gate and old mailbox exist across the North Road where it enters [the Bernhardts’] property. The gate and mailbox were in that location for years, during the entire period of . . . Thompson’s ownership.
¶ 31 Drawing all reasonable inferences in favor of the prevailing
party, we conclude that the record supports the district court’s
finding that Thompson had notice of the North Road easement.
V. Adverse Possession
¶ 32 Thompson contends the district court erred by finding that the
North Road easement was not extinguished by adverse possession.
We discern no error.
¶ 33 To prevail on an adverse possession claim for fee simple title to
real property, a party must demonstrate by clear and convincing
evidence that possession of the disputed area was actual, adverse,
hostile, under a claim of right, exclusive, and uninterrupted for
eighteen years. Smith v. Hayden, 772 P.2d 47, 52 (Colo. 1989); see
§ 38-41-101(1), (3)(a), (3)(b)(I), C.R.S. 2025. Additionally, “an
adverse claimant must establish a good faith belief that he or she
(or a predecessor in interest) was the property’s actual owner, which
14 belief was reasonable under the circumstances.” Lensky v.
DiDomenico, 2016 COA 89, ¶ 25; § 38-41-101(3)(b)(II).
¶ 34 But when “adverse possession is claimed solely as a defense to
an action for damages based upon a claim for trespass . . . against
the adverse possessor, and not to seek an award of legal title
against the claimant, the burden of proof shall be by a
preponderance of the evidence.” § 38-41-101(5)(b). The good faith
requirement likewise does not apply to claims that do not seek to
establish fee simple title to real property and instead concern only
“the creation, establishment, proof, or judicial confirmation or
delineation of easements.” § 38-41-101(4). “If the defendant is
claiming adverse possession solely as a defense to an action and not
to seek an award of legal title, the defendant shall so state in a
pleading filed by the defendant within ninety days after filing an
answer . . . .” § 38-41-101(5)(b).
¶ 35 In his answer to the Bernhardts’ second amended complaint,
Thompson asserted adverse possession both as a defense and as an
affirmative counterclaim. As a defense, he asserted that “[p]laintiffs’
claimed easement has been extinguished by adverse possession.”
As a counterclaim, he asked the court to “quiet title and to declare
15 the claimed [North Road] Easement, if it ever existed, extinguished
by adverse possession.”
¶ 36 In its order denying Thompson’s motion for reconsideration,
the district court treated his assertion of adverse possession as an
affirmative counterclaim, noting that Thompson “seeks to
extinguish the easement and own the land in fee simple to the
exclusion of the easement.” The court ruled that “the adverse
possession claim is groundless.” After noting that Thompson had
the burden of establishing each element of adverse possession by
clear and convincing evidence, it found that “the entire 18-year
prescription period of openly hostile and exclusive possession is
obscured and not proven.” It further found that Thompson had not
demonstrated that he and his predecessor in interest held a
reasonable good faith belief “that they were the actual owner of the
property instead of [the Bernhardts].”
¶ 37 Thompson argues that the district court erred by applying the
clear and convincing evidence standard and by requiring a
reasonable good faith belief, because he asserted adverse
possession both as a defense and as an affirmative counterclaim.
We are not persuaded, for three reasons.
16 ¶ 38 First, Thompson did not preserve the argument he raises
here — that the district court should have applied a preponderance
of the evidence standard and should not have required a good faith
belief. Although he addressed adverse possession in his written
closing argument and in a supplement to his motion for
reconsideration, he did not raise these issues. See Melat, Pressman
& Higbie, L.L.P. v. Hannon L. Firm, L.L.C., 2012 CO 61, ¶ 18 (“It is
axiomatic that issues not raised in or decided by a lower court will
not be addressed for the first time on appeal.”).
¶ 39 Second, whether couched as a defense or as a counterclaim,
Thompson’s assertion that the easement was extinguished by
adverse possession is, in essence, a claim that he owns the land in
fee simple, not subject to the easement. The district court
acknowledged as much when it noted that Thompson “seeks to
extinguish the easement and own the land in fee simple to the
exclusion of the easement.”
¶ 40 Third, section 38-41-101(5)(b) does not apply to Thompson’s
assertion of adverse possession because Thompson did not claim
adverse possession “solely as a defense to an action for damages.”
17 § 38-41-101(5)(b). Rather, he also sought “an award of legal title”
against the Bernhardts. Id.
¶ 41 We thus conclude that the district court did not err by
rejecting Thompson’s adverse possession claim.
VI. Full Relief Under C.R.C.P. 105
¶ 42 Finally, Thompson contends the district court erred by failing
to grant full relief under C.R.C.P. 105 when it entered its final
judgment and decree. Specifically, he argues that, when the district
court adopted a new survey of the North Road easement, it
“declined to also extinguish two surveyed easements that appear in
the record along a nearly identical path as the [North Road
easement].” He further argues that the court should have declared
the Pershing easement “extinguished in its entirety.”
¶ 43 Thompson preserved this argument in his response to the
Bernhardts’ motion to accept proposed judgment, but the district
court did not address it. C.R.C.P. 105(a) states, “The court may at
any time after the entry of the decree make such additional orders
as may be required in aid of such decree.” See Greystone Constr.,
Inc. v. Nat’l Fire & Marine Ins. Co., 661 F.3d 1272, 1290 (10th Cir.
2011) (“[T]he better practice on issues raised [below] but not ruled
18 on by the district court is to leave the matter to the district court in
the first instance.” (quoting Apartment Inv. & Mgmt. Co. v. Nutmeg
Ins. Co., 593 F.3d 1188, 1198 (10th Cir. 2010))); Pac. Frontier v.
Pleasant Grove City, 414 F.3d 1221, 1238 (10th Cir. 2005) (“Where
an issue has been raised, but not ruled on, proper judicial
administration generally favors remand for the district court to
examine the issue initially.”). Accordingly, we remand the case to
the district court to consider Thompson’s argument that these three
easements should be extinguished.
VII. Disposition
¶ 44 The judgment is affirmed, and the case is remanded for the
district court to consider whether the three easements noted by
Thompson in his response to the Bernhardts’ motion to accept
proposed judgment should be extinguished.
JUDGE GROVE and JUDGE SCHOCK concur.