Collins v. Ketter

719 P.2d 731, 1986 Colo. App. LEXIS 919
CourtColorado Court of Appeals
DecidedApril 3, 1986
Docket83CA0943
StatusPublished
Cited by6 cases

This text of 719 P.2d 731 (Collins v. Ketter) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Collins v. Ketter, 719 P.2d 731, 1986 Colo. App. LEXIS 919 (Colo. Ct. App. 1986).

Opinion

SMITH, Judge.

Plaintiffs appeal the partial summary judgment entered in favor of defendants in which the trial court found as a matter of law that plaintiffs did not have an easement by way of necessity over defendants’ road. They further appeal the court’s judgment for defendants, entered after trial on the remaining issues, based on findings that the road is not a public one and that defendants have not been estopped by their actions to deny plaintiffs use of the road. We affirm.

Plaintiffs are owners of land adjacent to a subdivision known as the Heathermeade Third Addition. Defendants Mildred Town-ley Brown, Clare Townley, and Inez Murchison own a bridge and road which runs from County Road 103 through the subdivision to plaintiffs’ property. The remaining defendants own or have owned property adjacent to that road.

The original owner of the land in question was Jones Townley (Townley) who conveyed a portion of the land to Edith Pick-ard on August 12, 1927. The Pickard parcel was undeveloped and completely surrounded by property belonging either to the grantor or to strangers. At the time, access to the Pickard tract and to the remaining land owned by Townley was the same; by footbridge over a stream which separated the land from County Road 103 or by crossing the stream itself.

Townley also originally owned the Heath-ermeade Third Addition which borders the Pickard tract on the southwest. The original, unrecorded plat of this subdivision, dated August 5, 1927, was divided into twenty-four lots. In 1932, a second plat of the subdivision was prepared and was recorded showing only twenty lots. The other four lots were deleted from the 1931 plat because at least a portion thereof was included within the boundaries of the property conveyed to Pickard in 1927. Also, in 1932 Townley graded a road through the platted portion of his land and constructed a bridge across the stream near the end of his property which was farthest from Pick-ard’s parcel. This road and bridge connected his property to County Road 103. In the recorded plat, which showed this road, he dedicated “to the public, the perpetual use of the streets, roadways and alleys that may appear herein.”

There has never been an express acceptance of the dedication by the Boulder County Commissioners, nor has Boulder County maintained or repaired the road. The use of the road has been limited to the occupants of the Heathermeade Third Addition, the owners of property adjacent to the roadway, and their invitees and guests. Title to the auto bridge and road remained in Townley and has now vested in his heirs Mildred Townley Brown, Clare Townley, and Inez Murchison.

In 1971, plaintiffs obtained title to the tract originally owned by Edith Pickard. They subsequently built a residence and constructed a well and septic system. At the time they acquired the property there was a gate in place across the bridge to which plaintiffs were given a key. They were able to use the road and bridge freely until the time this dispute arose in 1979 *733 when defendants refused to allow them further access.

I.

Plaintiffs first contend that the trial court erred in finding that, as a matter of law, plaintiffs did not have an easement, by way of necessity, over the Heathermeade Road. We disagree.

Generally, implied easements are not looked upon with favor by the courts. Wagner v. Fairlamb, 151 Colo. 481, 379 P.2d 165 (1963). However, sound public policy dictates that land should not be rendered unfit for occupancy. There is a presumption, therefore, that whenever a party conveys property he conveys whatever is necessary for the beneficial use of that property. Martino v. Fleenor, 148 Colo. 136, 365 P.2d 247 (1961).

A way of necessity arises when the land conveyed is entirely surrounded by the land of the grantor or by the land of the grantor and that of strangers. In such a case, a way of ingress and egress is implied over that portion of the land retained by the grantor.

Three requirements must be met before an easement by way of necessity will be implied: the original ownership of the entire tract must have been held by a single grantor prior to a division thereof; the necessity must have existed at the time of the severance; and the necessity for the particular right-of-way must be great. Wagner, supra; Deitesfeld v. Theobald, 494 P.2d 1311 (Colo.App.1972) (not selected for official publication).

The trial court, on the basis of undisputed facts, granted summary judgment on the claim of a way of necessity along defendants’ road and across their bridge, concluding, as a matter of law, that no necessity for that particular way of necessity existed at the time of the conveyance in 1927. We agree.

Townley conveyed only a part of his land to Pickard. At the time of the conveyance both Jones and Pickard had equal access to the county road which was separated from each of their properties only by the stream which ran along their property boundaries. The fact that five years later Townley improved the access to his property by constructing a road across the platted length of his property and building a bridge across the stream at the end of his property farthest from Pickards’ parcel is of no significance. Neither is the fact that it may be more convenient for Pickards’ successors to traverse the length of Townley’s road and cross his bridge, than to construct a bridge of their own directly across the stream and onto the road.

At the time of the conveyance, adequate access was afforded to Edith Pickard; therefore, no necessity existed and plaintiffs cannot meet the second prong of the test set out in Wagner, supra. Therefore, because no genuine issue of material fact existed as to Pickard’s need, at the time she acquired the property, for the particular way of necessity she now seeks, defendants were entitled to a partial summary judgment on this claim as a matter of law. Wasalco, Inc. v. El Paso County, 689 P.2d 730 (Colo.App.1984).

II.

Plaintiffs next contend that the trial court erred in ruling that the Heather-meade Road is not a public road.

The recording of a plat dedicating public roads is merely an offer to dedicate which must be accepted either by the general public, or by public authorities, within a reasonable time. Under some circumstances the offer may be withdrawn, but, in any event, if it is not accepted within a reasonable time it is lost. Until there has been an acceptance, the public acquires no interest in the street and assumes no duties with respect thereto. Litvak v. Sunderland, 143 Colo. 347, 353 P.2d 381 (1960).

The testimony and evidence taken at trial support the court’s finding that there was no acceptance of the offer of dedication either by the general public or public authorities within a reasonable time. The Boulder County Commissioners have *734 never accepted the dedication, nor has the county ever maintained or repaired the road.

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Cite This Page — Counsel Stack

Bluebook (online)
719 P.2d 731, 1986 Colo. App. LEXIS 919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-ketter-coloctapp-1986.