Family v. Pomeroy

2021 COA 73

• Court: Colorado Court of Appeals
• Decided: June 4, 2021
• Docket: 19CA2016, Amada
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY May 27, 2021 2021COA73

No. 19CA2016, Amada Family v. Pomeroy — Real Property —

After-acquired Interests — Easements

A division of the court of appeals considers whether Colorado’s

after-acquired interest statute, section 38-30-104, C.R.S. 2020,

abrogates the common law after-acquired interest doctrine, and if it

does not, whether easements may be transferred pursuant to

common law. Based on the plain language and legislative history of

the statute, the division concludes that the after-acquired interest

statute does not abrogate the common law doctrine and easements

are among the property interests that may be conveyed under it.

The division further considers whether, in addition to

conferring a right of access, an easement that arises by necessity

may confer a right to install utility lines. The division determines

that, especially where property is conveyed for residential use, the need for utilities is foreseeable and an easement by necessity can

include utility rights. COLORADO COURT OF APPEALS 2021COA73

Court of Appeals No. 19CA2016 Montrose County District Court No. 18CV30063 Honorable Mary E. Deganhart, Judge

Amada Family Limited Partnership,

Plaintiff-Appellee and Cross-Appellant,

v.

Eugene K. Pomeroy and Michelle M. Pomeroy,

Defendants-Appellants and Cross-Appellees.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division VI Opinion by JUDGE RICHMAN Lipinsky and Pawar, JJ., concur

Announced May 27, 2021

Brian Kidnay, PC, Brian Kidnay, Montrose, Colorado; Timmins LLC, Edward P. Timmins, Amy K. Hunt, Denver, Colorado, for Plaintiff-Appellee and Cross- Appellant

Masters Law Firm, P.C., David Masters, Montrose, Colorado, for Defendants- Appellants and Cross-Appellees ¶1 Defendants, Eugene K. Pomeroy and Michelle M. Pomeroy (the

Pomeroys), appeal a district court’s judgment in favor of plaintiff,

Amada Family Limited Partnership (Amada). Amada cross-appeals

the district court’s determination that it is not entitled to damages

for trespass. We affirm the judgment insofar as the district court

recognized easements in favor of Amada and the Pomeroys and

established their scope and location. We reverse the judgment

insofar as the district court determined that the Pomeroys could not

have trespassed on Amada’s easement and denied Amada damages.

We remand this case for a hearing on Amada’s trespass claim.

I. Background

¶2 Through a series of transactions with Michael and Virginia

McGee (the McGees), Amada purchased two parcels of land near

Montrose, Colorado, referred to as Parcel A and Parcel D. Because

the land to the east of Parcels A and D is impassable, these parcels

lack any feasible means of ingress and egress except across two

parcels now owned by the Pomeroys, referred to as Parcel B and

Parcel C. The four parcels are located as shown below:

1 ¶3 Amada asserts that it owns an express access and utility

easement over Parcels B and C in favor of Parcel A and an implied

access and utility easement over Parcels B and C in favor of Parcel

D. When these easements are pieced together, they provide Amada

access to and from Uncompahgre Road, the public road to the west

of the four parcels, and permit it to develop its land for residential

use. The Pomeroys dispute Amada’s easement claims. They

concede only that Amada has an express access and utility

easement over Parcel B (but not over Parcel C) in favor of Parcel A.

To resolve the issues raised, we must examine the history of Parcels

A through D.

2 A. Transactional and Procedural History

¶4 The McGees acquired Parcels A and B in 2003. In connection

with the sale, they received a right-of-way permit (the permit) from

the federal government, which owned Parcels C and D at the time.

The permit, issued by the Bureau of Land Management (BLM),

allowed the McGees to enter and exit their property on an access

road (the access road) that began at Uncompahgre Road, traveled

north through Parcel B to Parcel C, then turned south, reentering

Parcel B near the McGees’ residence.

¶5 In 2006, the McGees decided to sell Parcel A. To facilitate the

sale, they procured an amendment to the permit. The amendment

allowed the owner of Parcel A to create a new “spur” road north of

the existing access road. The spur road was intended to permit the

owner of Parcel A to access that parcel without driving near the

McGees’ residence on Parcel B.

¶6 In September 2007, by warranty deed (the 2007 deed), the

McGees sold Parcel A to Amada. The deed granted Amada an

easement (the 2007 easement) as follows:

Grantor hereby grants to Grantee a 50 foot non-exclusive easement for ingress, egress and utilities, extending by the most direct and

3 drivable route to the Property from Uncompahgre Road. This grant of [a] non-exclusive easement shall include the ground currently used and permitted for access under a permit issued by the Bureau of Land Management (BLM), if and when Grantor or its successors shall acquire title to said ground. It is mutually understood that no present Grant of [an] easement can be made across ground not currently owned by Grantor and that Grantor shall have no duty to provide alternative access while Grantee has legal access under said permit from the BLM. . . .

Grantor and/or Grantor’s heirs and/or assigns shall allow a 50 foot easement for ingress, egress and utilities to the benefit of the Grantee or Grantee’s heirs and/or assigns in the event Grantor acquires property from the Government that Grantees[’] and Grantors[’] current road is on that goes between Uncompahgre Road and Grantees[’] and Grantors[’] property.

(Emphasis added.) Thereafter, Amada used the existing access

road to access Parcel A as specified in the 2007 deed.

¶7 In December 2012, the federal government conveyed Parcels C

and D to the McGees. Thereafter, when Virginia McGee wanted to

access Parcel D, she generally crossed Parcels B and C on the

access road driving an all-terrain vehicle. Then, she crossed Parcel

A with Amada’s permission, using a trail on Parcel A to drive to

Parcel D.

4 ¶8 In June 2014, the McGees sold Parcel D to Amada. According

to Mark Covington, the agent who assisted the parties in

negotiating the sale of Parcel A and Parcel D, the parties understood

that the 2007 easement would extend to Parcel D because the

easement was already being used to access Parcel A and the “title

didn’t show lack of a right-of-access, so we went with that.” The

deed to Parcel D did not mention the 2007 easement, but Covington

testified that the parties expected Amada to use the access road to

get to Parcel D.

¶9 In July 2014, the McGees sold Parcels B and C to the

Pomeroys. After the sale, Amada continued to use the access road

as it had before.

¶ 10 In 2017, Amada built the planned spur road and began using

it to access its parcels. The spur road connects to the access road

on Parcel C and passes through an elk fence on Parcel C that was

installed, without the government’s permission, by a person who

owned Parcels A and B before the McGees owned them. To clarify

the issues surrounding the spur road, we have drawn lines on the

parcel map that roughly illustrate the manner in which the access

5 road (the solid line) and the spur road (the dotted line) intersect

with a portion of the elk fence (the dashed line).

¶ 11 After Amada built the spur road, and without Amada’s

consent, the Pomeroys placed a gate across the spur road where it

runs through a hole Amada made in the elk fence. The Pomeroys

also locked a gate at the entrance to the access road, effectively

denying Amada access to its parcels. They subsequently took the

position that Amada held no easements of any kind. In response,

Amada filed an action for declaratory judgment and trespass.

¶ 12 The Pomeroys counterclaimed seeking, among other things, a

declaratory judgment in their favor as to Amada’s claimed

easements and legal recognition of an easement on Parcel A in favor

of Parcels B and C. The Pomeroys argued that an easement on

6 Parcel A is necessary because it allows them to access a headgate,

located on Parcel A, that is essential to their irrigation system (the

headgate easement).

B. Easements Over Parcels B and C to Parcel A

¶ 13 Before trial, Amada filed a motion for partial summary

judgment. It argued that, under the 2007 deed, it owns an express

access and utility easement over Parcel B in favor of Parcel A. It

further argued that under the after-acquired interest statute, see

§ 38-30-104, C.R.S. 2020, as applied to the 2007 deed, when the

McGees acquired Parcel C in 2012, Amada acquired an express

easement over Parcel C in favor of Parcel A. Finally, Amada

asserted that it owns an implied access and utility easement across

Parcels B and C in favor of Parcel D based on necessity and the

McGees’ prior use of the access road to reach Parcel D.1

¶ 14 In a thorough written order, the district court concluded that

when the McGees sold Parcel A to Amada in 2007, Amada obtained

1 Amada additionally claimed, in the alternative, an implied easement by pre-existing use over Parcels B and C in favor of Parcel A. The district court denied this claim and Amada does not appeal this portion of the judgment. Therefore, we do not address it.

7 an express access and utility easement over Parcel B in favor of

Parcel A. It further concluded that, in 2012, under the common law

after-acquired interest doctrine, Amada obtained an express access

and utility easement over Parcel C in favor of Parcel A. However,

genuine issues of material fact remained with respect to the implied

easement over Parcels B and C in favor of Parcel D, and the court

declined to recognize the easement on summary judgment.

C. Easements Over Parcels B and C to Parcel D

¶ 15 The parties proceeded to a bench trial regarding the existence

of an implied easement in favor of Parcel D. At trial, the court also

considered whether the Pomeroys committed trespass by, among

other conduct, gating the spur road at the elk fence and locking a

gate at the entrance to the access road. In addition, the parties

asked the court to define the scope and location of any easements

recognized or established.

¶ 16 In a written order, the district court concluded that Amada

holds an implied access easement over Parcels B and C in favor of

Parcel D based on the McGees’ prior use, and an implied easement

by necessity, for access and utilities, over Parcels B and C in favor

8 of Parcel D. The court also prohibited the Pomeroys from gating the

spur road at the elk fence and it denied Amada’s trespass claim.

D. Easement Over Parcel A from Parcels B and C

¶ 17 In addition, the district court considered the Pomeroys’ claim

to the headgate easement. Amada conceded the existence of the

easement but expressed concern about its location and width. The

court’s trial order recognized an eight-foot-wide easement over

Parcel A in favor of Parcels B and C.

¶ 18 After trial, the Pomeroys filed a C.R.C.P. 59 motion to amend

the judgment, asking the district court to make the headgate

easement wider and to allow a gate on the spur road at the elk

fence. The court denied the motion.

E. Issues Appealed

¶ 19 On appeal, the Pomeroys contend that the district court erred

by (1) granting an express easement over Parcel C in favor of Parcel

A; (2) granting an implied easement over Parcels B and C in favor of

Parcel D; (3) requiring removal of the gate on the spur road; and (4)

denying their Rule 59 motion to widen the headgate easement. On

cross-appeal, Amada contends that the court erred by declining to

award damages for trespass. We address each contention in turn.

9 II. The Court Properly Recognized an Easement Over Parcel C in Favor of Parcel A

¶ 20 As noted above, the express easement over Parcel C in favor of

Parcel A was recognized on summary judgment. We review de novo

a district court’s grant of summary judgment. Wallman v. Kelley,

976 P.2d 330, 331 (Colo. App. 1998). To prevail on such a motion,

the moving party must demonstrate that there are no genuine

issues of material fact and the movant is entitled judgment as a

matter of law. Id. at 332.

¶ 21 There are no genuine issues of material fact regarding Amada’s

claim to an express easement over Parcel C in favor of Parcel A

because the existence of the easement hinges on the 2007 deed’s

granting language and the McGees’ undisputed purchase of Parcel

C in 2012. Premier Bank v. Bd. of Cnty. Comm’rs, 214 P.3d 574,

577-78 (Colo. App. 2009) (stating that interpretation of a deed is a

question of law and the granting clause controls the nature of the

interest conveyed).

¶ 22 However, the parties disagree as to what law applies. The

district court relied exclusively on the common law after-acquired

interest doctrine. The Pomeroys contend that the court erred in

10 this regard, urging that the after-acquired interest statute

abrogated the common law doctrine. They further argue that, even

if the common law doctrine survived enactment of the statute, it

does not support Amada’s claim.

A. The Statute Did Not Abrogate the Common Law

¶ 23 The parties have cited no case, and we have found none, in

which a Colorado court expressly decided whether Colorado’s

after-acquired interest statute abrogates the common law doctrine.2

To the extent that Colorado courts have addressed this issue, they

have noted that the statute is a codification of the common law

doctrine, which is generally stated as follows: “Where one conveys

lands with warranty, but without title, and afterwards acquires one,

his first deed works an estoppel, and passes an estate to the

grantee the instant the grantor acquires his title.” Phillippi v. Leet,

19 Colo. 246, 251-52, 35 P. 540, 541 (1893) (quoting 3 Emory

2 This common law principle is also sometimes referred to as “estoppel by deed.” Shaw v. Profitt, 110 P. 1092, 1095-96 (Or. 1910). For ease of reference, and to ensure linguistic consistency with existing case law, we will use the term “after-acquired interest” doctrine. See Premier Bank v. Bd. of Cnty. Comm’rs, 214 P.3d 574, 576 (Colo. App. 2009) (referring to the “after-acquired interest statute”).

11 Washburn, Washburn on Real Property 118 (4th ed. 1876)); see also

Premier Bank, 214 P.3d at 579. This doctrine serves to bind the

grantor to the terms of the purported conveyance, including any

warranties made, under principles of estoppel. Premier Bank, 214

P.3d at 579; Shaw v. Profitt, 110 P. 1092, 1092 (Or. 1910) (noting

that this doctrine is grounded in equity, which will grant relief by

estoppel when there is intentional or unintentional fraud).

¶ 24 Thus, Colorado’s after-acquired interest statute states that

[i]f any person sells and conveys to another by deed or conveyance, purporting to convey an estate in fee simple absolute, any tract of land or real estate lying and being in this state, not being possessed of the legal estate or interest therein at the time of the sale and conveyance and, after such sale and conveyance, the vendor becomes possessed of and confirmed in the legal estate of the land or real estate so sold and conveyed, it shall be taken and held to be in trust and for the use of the grantee or vendee, and said conveyance shall be held and taken, and shall be as valid as if the grantor or vendor had the legal estate or interest at the time of said sale or conveyance.

§ 38-30-104.

¶ 25 One notable difference between the statute and the common

law doctrine is that the doctrine applies “[w]here one conveys lands

with warranty, but without title,” Phillippi, 19 Colo. at 251-52, 35 P.

12 at 541 (emphasis added) (quoting Washburn at 118), while the

statute applies where one purports to convey “an estate in fee

simple absolute,” § 38-30-104 (emphasis added).

¶ 26 According to the Pomeroys, this difference in wording indicates

that a grantee is entitled to an after-acquired interest only if the

grantor originally conveyed the subject property in fee simple

absolute. They further argue that an easement is not an estate in

“land or real estate” that may be conveyed in fee. § 38-30-104.

Rather, it is a “nonpossessory property right to enter and use land

in the possession of another.” Matoush v. Lovingood, 177 P.3d

1262, 1265 (Colo. 2008) (citation omitted). Therefore, the argument

goes, easements cannot be conveyed in fee under the statute and

they cannot be conveyed as after-acquired property interests under

the common law, which has been abrogated.3 For three reasons, we

are not persuaded.

3 We need not decide whether the after-acquired interest statute applies to easements incorporated in a fee simple deed. The district court relied on the common law doctrine, and the parties made arguments about its continued viability. Therefore, the common law issue is squarely before us.

13 ¶ 27 First, when interpreting a statute, our primary goal is to give

effect to the legislative intent. Premier Bank, 214 P.3d at 577. We

therefore read statutory words or phrases according to their plain

meanings, being careful not to construe them in a manner that

unjustifiably enlarges or diminishes their import. Robbins v.

People, 107 P.3d 384, 387-88 (Colo. 2005). This rule informs a

related principle: “[A] statute may not be construed to abrogate the

common law unless such abrogation was clearly the intent of the

[G]eneral [A]ssembly.” Id. To abrogate the common law, a statute

must expressly state the intention to do so or must do so by

necessary implication. City of Colorado Springs v. White, 967 P.2d

1042, 1055 (Colo. 1988).

¶ 28 Our review of the plain language of the statute reveals that it

expressly provides a statutory remedy only for parties who have

received a defective conveyance in fee simple absolute. However, it

is silent regarding any intent to abrogate the common law. The

statute’s express provision of a remedy to cure defects in fee simple

estates does not preclude the survival of common law remedies. Id.

(“A statute is merely cumulative of the common law if the legislature

intended not to interfere with preexisting rights, but to give

14 additional relief.”); see also 31 C.J.S. Estoppel § 26 (2021) (noting

that a statute providing for transfer of after-acquired title in fee

simple absolute “does not limit the application of the rule estopping

a grantor to assert an after-acquired title to grants falling within the

provisions of the statute, and, notwithstanding the statute, such an

estoppel may arise from covenants of warranty contained in other

grants.”) (footnote omitted). In our view, the General Assembly has

expressed no clear intent to abrogate the common law.

¶ 29 Second, the legislative history of section 38-30-104 indicates

that it was enacted to clarify an ongoing debate over which

warranties are impliedly included in particular kinds of deeds.

Colorado first enacted the after-acquired interest statute as a

territorial ordinance in 1861. See Premier Bank, 214 P.3d at 576.

It has not been amended since that time. In 1868, when the

ordinance was first included in a compilation of Colorado statutes,

it appeared with a footnote referencing Illinois law. See R.S. 1868,

Ch. 17, § 4. As is the case with many of our statutes, it appears

that Colorado’s after-acquired interest statute was patterned after a

statute enacted earlier in Illinois. When Colorado adopts a statute

from another state and, at the time of enactment, it has been

15 construed by an appellate court of that state, we may presume our

legislature intended the statute to be construed in a similar

manner. Peters v. Smuggler-Durant Mining Corp., 930 P.2d 575, 578

(Colo. 1997); Brown v. Davis, 103 Colo. 110, 114, 83 P.2d 326, 328

(1938).

¶ 30 In Frink v. Darst, 14 Ill. 304, 309-10 (1853), the Supreme

Court of Illinois explained the rationale behind the Illinois statute’s

exclusive application to estates in fee simple absolute. According to

the court, the “fee simple absolute” language was included to

distinguish the legal effect of deeds conveying fee simple title, which

indefeasibly vest the entire estate in the grantee, from the legal

effect of quitclaim deeds, which convey only the grantor’s current

interest and necessarily exclude transfer of subsequently acquired

interests. Id.; see Tuttle v. Burrows, 852 P.2d 1314, 1316 (Colo.

App. 1992) (holding that a quitclaim deed does not convey property

rights that vest after conveyance).

¶ 31 Quoting language from a Missouri case interpreting a

“precisely similar” statute, the Illinois court explained,

our statute was intended to settle a question which had been much discussed, and about which there was certainly great conflict of

16 opinion; whether a general warranty would operate to transfer a subsequently acquired legal title. It undoubtedly settles this question in the affirmative, and, I think, it goes further. . . . It does not limit its operation to deeds containing covenants of general warranty, but it extends to every deed which purports to convey a fee simple absolute, whether it contains a general warranty or not.4

Frink, 14 Ill. at 309-10 (quoting Bogy v. Shoab, 13 Mo. 365, 381

(1850)).

¶ 32 Thus, when Colorado’s legislative body first adopted this

statute, it did so with an understanding that the “fee simple

absolute” language was meant to remove lingering uncertainty

regarding whether a deed conveying an estate in fee simple absolute

impliedly warranted that the estate was indefeasibly vested, even

against grantors claiming after-acquired interests. Conversely, this

same wording was intended to clarify that quitclaim deeds contain

no implied warranties and do not convey after-acquired interests

unless express warranties are made.

4 A general warranty is “[a] warranty against the claims of all persons.” Black’s Law Dictionary (11th ed. 2019). Thus, it includes the grantor.

17 ¶ 33 Given this history, we do not construe the statute as a

limitation on common law remedies but as an answer to

uncertainties surrounding the necessity of express warranties. See

Robben v. Obering, 279 F.2d 381, 384 (7th Cir. 1960) (concluding

that the Illinois statute did not abrogate the common law but was

intended to remove “uncertainty which may have existed as to

whether an express warranty was required to invoke the doctrine of

after-acquired title”). In fact, after passage of the statute, Illinois

courts continued to enforce the common law doctrine that deeds

expressly warranting title, whether they grant fee simple estates or

not, are effective to transfer after-acquired interests. Bennett v.

Waller, 23 Ill. 97 (1859) (noting that, although the statute did not

apply to a particular deed, after-acquired title passed under an

express covenant in the deed); Phelps v. Kellogg, 15 Ill. 131, 137

(1853) (concluding that, under equitable principles, and due to an

express covenant, an after-acquired property interest was

transferred by quitclaim deed); see also Aure v. Mackoff, 93 N.W.2d

807, 812 (N.D. 1958) (noting that common law “estoppel by deed”

principles were applicable to a quitclaim deed that warranted title

18 because the doctrine “is not limited to cases falling within our

statutory provisions”).

¶ 34 Third, several Colorado cases impliedly acknowledge the

continued viability of the common law doctrine. See Phillippi, 19

Colo. at 252, 35 P. at 541-42 (recognizing an exception to the

statute based on common law); Colo. Trout Fisheries v. Welfenberg,

84 Colo. 592, 594, 273 P. 17, 18 (1928) (noting that the

after-acquired interest statute is “merely a legislative codification of

the general rule and in harmony with the same”) (emphasis added);

Bessemer Irrigating Ditch Co. v. Woolley, 32 Colo. 437, 445-46, 76 P.

1053, 1055 (Colo. 1904) (discussing whether a habendum clause

purporting to confirm in the grantee any estate specifically granted

“which the grantor might thereafter acquire” can transfer

after-acquired property apart from statutory protections).

¶ 35 For these reasons, we conclude that section 38-30-104 does

not abrogate the common law.

B. The Claimed Easement Was Transferred Under the Common Law Doctrine

¶ 36 Having determined that the common law doctrine remains

viable, we must now consider a second question: whether the

19 easement claimed by Amada is subject to post-conveyance transfer

under common law.

¶ 37 As noted above, among other possible methods, transfer of

after-acquired property may occur under an implied warranty (as

provided in the statute, for example). It may also be effected

through an express covenant in a contract or instrument of

conveyance. Lobato v. Taylor, 71 P.3d 938, 950 (Colo. 2002);

Phelps, 15 Ill. at 137; Bennett, 23 Ill. at 97. In this case, we need

not concern ourselves with implied warranties because the 2007

deed expressly promises the transfer of an after-acquired easement

over Parcel C. Therefore, we need only determine the enforceability

of the express covenant.

¶ 38 As we explained, supra Part II.A n.2, the after-acquired

interest doctrine rests on principles of estoppel and is sometimes

called “estoppel by deed.” The doctrine “prevents a party to a deed

from denying anything recited in that deed if the party has induced

another to accept or act under the deed.” Estoppel By Deed, Black’s

Law Dictionary (11th ed. 2019). It serves to prevent fraud and

honors the parties’ intentions by defining their obligations

according to the terms of the challenged instrument. See Int’l Tr.

20 Co. v. Palisade Light, Heat & Power Co., 60 Colo. 397, 401-02, 153

P. 1002, 1003 (1916); Gyra v. Windler, 40 Colo. 366, 369-70, 91 P.

36, 37 (1907); Shaw, 110 P. at 1094. The doctrine may be used to

enforce any covenant in a deed that sets forth the parties’

obligations. Int’l Tr., 60 Colo. at 401-02, 153 P. at 1003.

¶ 39 As the district court noted, courts in other states have

concluded that easements may be transferred as after-acquired

property under principles of estoppel or estoppel by deed. Noronha

v. Stewart, 245 Cal. Rptr. 94, 96 (Ct. App. 1988) (noting that a

grantor that purports to convey any property interest, including oral

easements, is estopped to deny its transfer); Arnold Indus., Inc. v.

Love, 63 P.3d 721, 726-27 (Utah 2002) (“To allow a grantor to deny

the terms of its conveyance after acquiring title by repudiating an

easement originally intended to be granted would be an invitation to

fraud and would contravene the central purpose of the equitable

doctrine of estoppel by deed.”); see also Sprinkle v. Am. Mobilephone

Paging, Inc., 525 So. 2d 1353, 1356-57 (Ala. 1988) (concluding that

the defendant grantor was bound to his grant of an easement under

the after-acquired interest doctrine because this result honored the

intent of the parties); Spencer v. Wiegert, 117 So. 2d 221, 226 (Fla.

21 Dist. Ct. App. 1959) (“Easements constitute property within the rule

of estoppel as to after-acquired property.”).

¶ 40 Nevertheless, the Pomeroys insist that Noronha and Arnold, on

which the district court relied, do not support Amada’s claim

because these cases state (or imply) that, to proceed under a theory

of estoppel, a grantee must have reasonably relied on a grantor’s

representation that he or she owned the after-acquired property.5

5 Amada contends that we should not consider this issue because the Pomeroys did not preserve it. We disagree. The Pomeroys had no opportunity to raise the issue because Amada did not make arguments based on the common law doctrine until it replied to the Pomeroys’ response to its motion for summary judgment. Although we normally do not consider unpreserved issues in civil cases, Grant Bros. Ranch, LLC v. Antero Res. Piceance Corp., 2016 COA 178, ¶ 11, here, we elect to do so. The district court’s ruling was based on common law. Although the Pomeroys did not make these arguments below, the court had an opportunity to rule on the applicability of the common law doctrine. Id. Further, principles of judicial economy and fairness weigh in favor of granting review. Flagstaff Enter. Constr., Inc. v. Snow, 908 P.2d 1183, 1185 (Colo. App. 1995) (noting the unfairness of making a new argument in a reply brief in the district court); Farmer v. Colo. Parks & Wildlife Comm’n, 2016 COA 120, ¶ 19 (stating that court has discretion to review unpreserved issues of law where they have been fully briefed); see also Rinker v. Colina-Lee, 2019 COA 45, ¶¶ 24-26 (holding that, where a trial court rules on an issue without giving all parties an opportunity to be heard, the merits of the ruling are subject to appellate review even in the absence of a timely objection).

22 Logically, a grantee cannot rely on this representation when the

grantee had notice that, at the time of the conveyance, the grantor’s

title was defective or nonexistent. Noronha, 245 Cal. Rptr. at 97

(noting that estoppel does not apply in favor of a grantee who has

notice that the grantor does not own the property conveyed); Arnold,

63 P.3d at 726-27 (considering whether a grantee’s reliance was

reasonable when the defective grant was a matter of public record).

¶ 41 It is true that a party generally has no right to invoke

principles of estoppel unless that party reasonably relied on the

grantor’s representation. See Lobato, 71 P.3d at 950-51 (stating

that an easement may be created by estoppel where the claimant

substantially changed position in reliance on the conduct of the

grantor); Alexander v. McClellan, 56 P.3d 102, 106 (Colo. App. 2002)

(“Estoppel requires that a person, by words, by conduct, or by

silence when he or she has a duty to speak, induce another to

change position detrimentally in reasonable reliance on his or her

actions.” (quoting Cont’l W. Ins. Co. v. Jim’s Hardwood Floor Co., 12

P.3d 824, 828 (Colo. App. 2008))). Nonetheless, a covenant “will

always work an estoppel to the extent of its terms,” Washburn at

110, so reliance should be evaluated according to the terms of the

23 covenant at issue. See also Premier Bank, 214 P.3d at 579 (noting

that the after-acquired interest statute, which is in harmony with

the common law, binds grantor to the terms of the conveyance).

¶ 42 The terms of the covenant in 2007 deed were that, although

the McGees didn’t own Parcel C at the time, the easement would

include the land currently permitted for access if the McGees

acquired that land. The covenant also compelled the grantors and

their assigns to “allow a 50 foot easement for ingress, egress and

utilities to the benefit of the Grantee . . . in the event Grantor

acquires property [incorporating the current access road] from the

Government.” Based on that understanding, Amada acquired

Parcel A, from which no feasible means of access exists without the

easement over Parcel C. It therefore reasonably relied on the

McGees’ promise to allow an easement over Parcel C if they could

acquire it.6 The district court did not err by recognizing the claimed

easement.

6Similar covenants promising transfer of after-acquired interests have been given effect in Illinois. E.g., Bennett v. Waller, 23 Ill. 97, 97 (1859) (upholding a covenant in a quitclaim deed promising “with all convenient speed” to obtain a patent for the premises and execute additional deeds if necessary to ensure transfer of perfect

24 III. The Court Properly Recognized an Access and Utility Easement Over Parcels B and C in favor of Parcel D

¶ 43 The Pomeroys next challenge the district court’s recognition of

an implied access and utility easement over Parcels B and C in

favor of Parcel D. They contend that the evidence did not support

the court’s conclusion that the McGees’ prior use of the access road

to enter Parcel D created an implied easement. They further

contend that any implied easement arising by necessity did not

include utility rights.

¶ 44 To the extent the Pomeroys base their arguments on factual

disputes, we review for clear error. Campbell v. Summit Plaza

Assocs., 192 P.3d 465, 469 (Colo. App. 2008). However, we review

any legal issues de novo. Id.

A. The Elements of an Easement by Prior Use Were Met

1. Law

¶ 45 When not expressly conveyed, easements may arise by

implication. Lobato, 71 P.3d at 950. Colorado law recognizes

title); Phelps v. Kellogg, 15 Ill. 131, 137 (1853) (where a grantor had only a right of preemption at the time of conveyance, but the deed included a promise to transfer further title if it was acquired, the court enforced the covenant to transfer after-acquired title).

25 implied easements based on a strong public policy in favor of

honoring the intentions of parties and avoiding unjust results and

against rendering land useless due to a lack of access. Id.;

Thompson v. Whinnery, 895 P.2d 537, 540 (Colo. 1995). To that

end, when a party conveys property, there is a presumption that the

party has conveyed whatever is necessary to provide for its

beneficial use. Thompson, 895 P.2d at 540; see also Collins v.

Ketter, 719 P.2d 731, 733 (Colo. App. 1986).

¶ 46 An easement by prior use is a type of implied easement. To

establish an easement by prior use, a party must show that

1) the servient and dominant estates were once under common ownership, 2) the rights alleged were exercised prior to the severance of the estate, 3) the use 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, 71 P.3d at 951 (citing Restatement (Third) of Prop.:

Servitudes § 1.2(2) (Am. L. Inst. 1998)).

¶ 47 The “common ownership” requirement serves to protect the

ownership rights of grantors by requiring all owners of an estate to

impliedly or expressly consent to the burden of an easement before

26 it can arise. Campbell, 192 P.3d at 472 (noting that “ownership and

its attendant rights are what is important, not [arbitrary lot]

divisions or identifiers”); Restatement (Third) of Prop.: Servitudes

§ 2.3 (Am. L. Inst. 2000); cf. Yellowstone River, LLC v. Meriwether

Land Fund I, LLC, 264 P.3d 1065, 1079 (Mont. 2011) (stating that

an implied easement may arise only “at the time of severance,

because the common owner may grant or reserve an easement only

over her own property” not over neighboring or intervening

property).

¶ 48 Similarly, the requirement that the “use was not merely

temporary” is intended to honor the owner’s intent at the time of

severance. Thus, to create an easement by prior use, the owner

must use the premises “in [an] altered condition” long enough prior

to severance to demonstrate that the owner intended the change to

be permanent. Lee v. Sch. Dist. No. R-1, 164 Colo. 326, 331, 425

P.2d 232, 236 (1967).

2. Analysis

¶ 49 The Pomeroys assert that, because the McGees conveyed

Parcel A to Amada before the McGees acquired Parcels C and D, the

relevant parcels were not under common ownership prior to

27 severance and no easement as to Parcel D was created. They insist

that to prove common ownership, Amada was required to show the

McGees owned all the parcels simultaneously and that all their land

was contiguous.

¶ 50 We are not persuaded. This argument misconstrues the scope

of Amada’s claim. Amada’s claim is that it holds an easement

appurtenant to the dominant estate, Parcel D, over Parcels B and C,

which are the relevant servient estates. Lazy Dog Ranch v. Telluray

Ranch Corp., 965 P.2d 1229, 1234 (Colo. 1998) (Lazy Dog II) (noting

that servient estates are those burdened by an easement while

dominant estates are those benefitted). Parcel A is not one of the

servient estates that must have been under common ownership for

an easement to have been created. Put differently, the parties’

intent with respect to Parcel A, which was already owned by Amada

at the time of severance, is not relevant to whether, at the time the

ownership of Parcel D was severed from Parcels B and C, the

McGees intended to permit Amada to enter Parcel D via the access

or spur roads on Parcels B and C.

¶ 51 Nor is the McGees’ prior use of Parcel A relevant simply

because it is situated between the parcels the McGees retained at

28 the time of conveyance. Colorado follows the modern rule that an

easement may be appurtenant to land even when the servient

estates are not adjacent to the dominant estate. Wagner v.

Fairlamb, 151 Colo. 481, 487, 379 P.2d 165, 169 (1963). This rule

applies to implied as well as express easements. Id.; Ass’n of

Apartment Owners of Wailea Elua v. Wailea Resort Co., Ltd., 58 P.3d

608, 617 n.7 (Haw. 2002) (noting that severance of noncontiguous

properties is not fatal to recognition of an implied easement).

¶ 52 The Pomeroys further argue that the McGees’ prior use of

roads on Parcels B and C to access Parcel D did not endure long

enough and was not apparent enough to demonstrate an intent that

their use be permanent. They point to the fact that the McGees

only owned Parcels B, C, and D for about eighteen months and no

paved road or trail was ever constructed over Parcel A to allow the

McGees to access Parcel D. Again, we are not persuaded.

¶ 53 In Proper v. Greager, 827 P.2d 591, 593 (Colo. App. 1992), for

two years prior to severance of the subject properties, the common

owner drove across a parking lot on the servient estate to reach a

mobile home and shed on the dominant estate. A division of this

court concluded that the owner’s prior use demonstrated his use of

29 the premises in an altered condition long enough to create an

implied easement. Id.

¶ 54 The facts in this case are like those in Proper. The McGees

owned the subject parcels for eighteen months, a similar length of

time. Further, Mrs. McGee testified that to get to Parcel D, she

routinely took the access road over Parcels B and C (which she then

owned) to Parcel A, where (with Amada’s permission) she would ride

her all-terrain vehicle over a trail on Parcel A to Parcel D. Thus, as

in Proper, she used an existing road or thoroughfare on the servient

estates to access her other parcel, fulfilling the requirement that the

road is used in an “altered condition” by the prior owner.

¶ 55 It is of no moment that only a rough “trail” over Parcel A

existed at the time Mrs. McGee used it. Any trail on Parcel A is only

relevant insofar as it completes the narrative regarding the manner

in which the McGees got to Parcel D. It shows, with specificity,

where Mrs. McGee drove her all-terrain vehicle to get to her

noncontiguous parcel. The Pomeroys have cited no case, and we

have not found one, requiring that a road necessary to the common

owner’s prior use must be paved to make the use sufficiently

apparent. This is especially so where, as here, the intent of the

30 parties at the time of conveyance is clear because Mrs. McGee and

Covington testified that they expected Amada to access Parcel D in

the same way the McGees had. The trial evidence supports the

conclusion that the owners’ prior use was apparent.

¶ 56 For these reasons, we conclude that the district court did not

err by recognizing Amada’s implied access easement over Parcels B

and C in favor of Parcel D.7

B. An Access and Utility Easement Arose By Necessity

¶ 57 The Pomeroys’ challenge to Amada’s claim to an easement by

necessity is narrow. In their briefs, they do not appear to argue

that no easement by necessity exists over Parcels B and C in favor

of Parcel D. They argue only that an easement created by necessity

cannot include the right to run utilities to the dominant parcel. On

this basis, they argue that the trial court erred by awarding a utility

easement to Amada in favor of Parcel D. Insofar as this contention

raises a purely legal issue, our review is de novo. Campbell, 192

7The court did not grant a utility easement based on prior use because the McGees did not install utilities when they owned Parcel D.

31 P.3d at 469. To the extent the Pomeroys raise an implicit challenge

to the court’s evidentiary findings, we review for clear error. Id.

¶ 58 An easement by necessity arises when the owner of a parcel of

land grants part of the land to another party, leaving either the part

granted or the part retained without access except through the

other part. Id. In that circumstance, as with an easement by prior

use, a presumption arises that the grantor has conveyed or retained

whatever is necessary to provide for the beneficial use of both

properties. Martino v. Fleenor, 148 Colo. 136, 140, 365 P.2d 247,

249 (1961). If this presumption is not contradicted by the terms of

the deed and the facts of a particular case, an easement by

necessity will arise. Id.

¶ 59 The scope of an easement by necessity depends on the

purpose for which the parcel was conveyed. Thompson, 895 P.2d at

541. A parcel’s purpose includes uses that would be reasonably

expected based on “normal development” of the parcel. Id. “[T]he

law assumes that no person intends to render property conveyed

inaccessible for the purpose for which it was granted.” Wagner, 151

Colo. at 487, 279 P.2d at 169. Therefore, the permissible uses of an

32 easement by necessity vary according to what rights are necessary

to enable a grantee to use the land as intended and reasonably

expected. Id.; Thompson, 895 P.2d at 541.

¶ 60 Although Colorado has not explicitly done so, several courts in

other states have concluded that an easement by necessity may

include utilities. Jon W. Bruce & James W. Ely, Jr., The Law of

Easements and Licenses in Land § 8.7 n.5, Westlaw (database

updated Nov. 2020) (collecting cases). Support for this view is

especially strong where a parcel is already in residential use or a

parcel was conveyed for residential purposes, making the necessity

of utility rights reasonable and foreseeable. Reece v. Smith, 594

S.E.2d 654, 658 (Ga. Ct. App. 2004) (granting an implied utility

easement where “[t]he utilities were necessary to the reasonable

enjoyment of the land as a place of residence”); Brown v. Miller, 95

P.3d 57, 61 (Idaho 2004) (upholding a trial court’s ruling that “it is

only logical [that] an easement by necessity also includes utilities”);

Smith v. Heissinger, 745 N.E.2d 666, 671-72 (Ill. App. Ct. 2001)

(concluding that easements by necessity are not limited to ingress

and egress but may include utilities); Stroda v. Joice Holdings, 207

P.3d 223, 230 (Kan. 2009) (recognizing that an easement by

33 necessity included a right to utilities because the reasonable use of

residential property required utility services); Morrell v. Rice, 622

A.2d 1156, 1160 (Me. 1993) (“An easement created by necessity can

include not only the right of entry and egress, but also the right to

make use of the easement for installation of utilities . . . .”). We find

these cases, and the notion that foreseeable residential use

reasonably includes utilities, to be persuasive. But see Vertex

Holdings, LLC v. Cranke, 217 P.3d 120, 124 (Okla. Civ. App. 2008)

(denying an easement by necessity for utilities because, at the time

of severance, there was no necessity for a sewer line and nothing

about the severance altered the positions of the parties).

¶ 61 At trial, both Amada’s trustee, Gary Gustafson, and Covington

testified concerning the purpose for which Parcels A and D were

sold. Based upon this testimony, the trial court found “it was not a

secret that [Amada] intended to utilize Parcel D for residential

purposes.” There is record support for this finding.

¶ 62 Covington testified that the 2014 conveyance of Parcel D was

really a “continuation” of the deal between the McGees and Amada

in 2007. The parties assumed that access and utility rights would

34 be the same for both parcels. He further testified that, at the time

of conveyance, Parcel D had no restrictions on its use and putting a

residence on Parcel D would have been part of “normal

development” of the parcel.

¶ 63 Gustafson testified that when he decided to purchase Parcel A

via the trust, he did so because he wanted to move to Montrose and

buy land for investment. He further stated that he planned to

divide Parcel A and install a road or utilities, an intention reflected

in the deed to Parcel A, which provides parameters for dividing the

parcels into residential lots. Gustafson also testified that he and

Mr. McGee talked about their plans to split their parcels into

smaller home sites. According to Gustafson, when Amada

purchased Parcel D, he hoped to use that parcel as an investment

property as well.

¶ 64 Negotiations for the Pomeroys’ purchase of the other parcels

were proceeding simultaneously with Amada’s negotiations for

Parcel D and the Pomeroys expressed an interest in purchasing a

portion of the northwest corner of Parcel D. Based on the

Pomeroys’ interest in reducing the size of Parcel D, Gustafson asked

that additional land be added to it to ensure that Parcel D would

35 include at least thirty-six acres. He insisted on this number

because he wanted Parcel D to have enough acreage to comply with

state and county rules setting minimum acreage standards for

selling a parcel. He also contemplated putting his own residence on

Parcel D, building an access road on Parcel A to Parcel D, and

running utilities for both parcels under that road. It was his

understanding that because the 2007 easement to Parcel A

included utilities, any access easement to Parcel D would include

utilities as well.

¶ 65 We conclude that because the scope of an easement by

necessity is set according to the purpose of the conveyance, and the

trial court found, with evidentiary support, that Parcel D was

conveyed for residential purposes, the court did not err by

recognizing that Amada’s easement on Parcels B and C in favor of

Parcel D includes utility rights.8

8The district court’s order stated that “there was no evidence that allowing the existing easement for utilities to also benefit Parcel D would in any way further burden Parcels B and C.” Therefore, utility rights are not precluded by a concern with overburdening Parcels B and C.

36 IV. The Court Did Not Err by Requiring Removal of the Gate

¶ 66 The Pomeroys next contend that the district court erred by

concluding that the gate on the spur road at the elk fence must be

removed because it is an unreasonable interference with Amada’s

easement. Whether gates or other impediments unreasonably

interfere with the rights of an easement holder is a question of fact.

Lazy Dog Ranch v. Telluray Ranch Corp., 923 P.2d 313, 317 (Colo.

App. 1996) (Lazy Dog I). We will not disturb the district court’s

findings unless they are not supported by the evidence. Id.

A. Law

¶ 67 Where, as here, an easement is not exclusive, both the owner

of the dominant estate and the owner of the servient estate have a

right to use the property. Therefore, the parties’ interests must be

balanced. Lazy Dog II, 965 P.2d at 1238. The owner of the servient

estate has a “qualified right to put his or her property to any lawful

use for which it may be adapted” but “cannot unreasonably

interfere with the superior right of the person possessing the

easement.” Lazy Dog I, 923 P.2d at 316. By contrast, the owner of

the dominant estate may use the easement in any manner

“reasonably necessary to permit [its] full use,” but cannot

37 unreasonably interfere with the enjoyment of the servient estate.

Id.; Lazy Dog II, 965 P.2d at 1238.

¶ 68 When a grant is silent regarding whether an easement may be

gated, and the owner of a servient estate insists on gating the

easement, his conduct may unreasonably interfere with the rights

of the easement holder. Lazy Dog I, 923 P.2d at 316; see also

Schold v. Sawyer, 944 P.2d 683, 685 (Colo. App. 1997).

Circumstances relevant to the reasonableness of his conduct

include, among other factors, “(1) the purpose for which the grant

was made; (2) the intention of the parties given the circumstances

surrounding the grant; (3) the nature and situation of the property;

[and] (4) the manner in which the easement was used.” Lazy Dog I,

923 P.2d at 317.

B. Analysis

¶ 69 The Pomeroys contend that the district court’s finding was

erroneous because the court improperly balanced the interests of

the parties. They argue that the court gave insufficient weight to

the fact that they erected a three-strand fence along the

north/south border between Parcel C and Parcel A that connects

with the elk fence, creating an enclosed horse pasture on Parcel C.

38 According to the Pomeroys, removal of the gate at the elk fence

would render this space unusable as a horse pasture, denying them

the full enjoyment of their estate. In addition, they assert that the

court gave too much weight to Amada’s future development plans

because these plans are still speculative.

¶ 70 The Pomeroys did not raise potential destruction of the horse

pasture during trial, focusing instead on the damage elk might

cause should they enter through the opening in the fence. Because

they raised the horse pasture issue for the first time in their Rule

59 motion, and the argument was based on evidence not presented

at trial, the district court declined to consider it. The Pomeroys

therefore failed to preserve this issue for review. Grant Bros. Ranch,

LLC v. Antero Res. Piceance Corp., 2016 COA 178, ¶ 11.

¶ 71 Moreover, we do not consider whether the district court gave

too much weight to Amada’s residential development plans, given

that these plans remained speculative, or failed to give enough

weight to the Pomeroys’ need for a continuous elk fence. Our

review is confined to determining whether the district court’s

findings are supported by the evidence. Lazy Dog I, 923 P.2d at

317. The court’s order shows that it considered the factors listed in

39 Lazy Dog I: the purpose of the grant, the intentions of the parties,

the “nature and situation” of the land, and the manner in which the

easement was used. Id. It found that the expected placement of

the spur road “necessitated that it pass through the elk fence,” the

grant’s purpose was to facilitate residential use, and prior to the

Pomeroys’ ownership, there were no gates or impediments to

access. It further noted that even when the elk fence is gated, the

Pomeroys lack a complete perimeter fence because they have

chosen to allow a large break in the fence where it intersects with

their driveway. The record contains support for each of these

findings. Accordingly, we will not disturb them on appeal. Id.

V. We Decline to Address the Width of the Headgate Easement

¶ 72 The Pomeroys further argue that the district court abused its

discretion by denying their Rule 59 motion to amend the judgment

to widen the headgate easement. We decline to review this issue

because it was not properly appealed.

¶ 73 Under C.A.R. 4(a), to preserve the right to appeal, a party in a

civil case must file a notice of appeal within forty-nine days of the

date the judgment is entered (although the running of the time to

appeal is terminated by the filing of a Rule 59 motion). Failure to

40 file a timely notice of appeal deprives this court of jurisdiction,

precluding review on the merits. In re Estate of Anderson, 727 P.2d

867, 869 (Colo. App. 1986).

¶ 74 In this case, the district court rendered judgment on

September 16, 2019. The Pomeroys filed their Rule 59 motion on

September 30. They then filed a notice of appeal on November 4,

2019, forty-nine days after the district court rendered judgment.9

At that time, the trial court had not ruled on their Rule 59 motion,

and it did not do so until November 25, 2019. The Pomeroys were

therefore unable to appeal the denial of their Rule 59 motion when

they filed their initial notice of appeal. Moreover, they did not

amend the notice of appeal after the district court denied their Rule

59 motion. The time for supplementing or amending the initial

notice of appeal has now expired.

¶ 75 Under these circumstances, the district court’s ruling on the

Rule 59 motion was not properly appealed and we have no

jurisdiction to consider it. Id. at 870 (holding that this court lacked

9 The Pomeroys’ Rule 59 motion terminated the running of the time for filing a notice of appeal. C.A.R. (4)(a). Therefore, the notice of appeal was prematurely filed.

41 jurisdiction to review a postjudgment order where the order was not

initially appealed and the notice of appeal was never supplemented).

VI. The Court Improperly Denied Damages for Trespass

¶ 76 On cross-appeal, Amada contends that the district court erred

by declining to award economic damages to remedy the Pomeroys’

alleged trespass. We agree.

¶ 77 Although the import of the court’s order is somewhat unclear,

it appears the court determined that, with one exception not

applicable here, a servient owner cannot “trespass” on an easement

by placing impediments on it because the easement holder does not

technically possess the land. Since no trespass may occur, no

damages for trespass may be awarded, but injunctive relief is

available. This ruling requires us to consider what remedies may be

given for a servient estate owner’s placement of impediments on an

easement. We review this legal question de novo. Campbell, 192

P.3d at 469.

¶ 78 In making its decision, the district court largely relied on

language from Upper Platte & Beaver Canal Co. v. Riverview

Commons General Improvement District, 250 P.3d 711, 716-17 (Colo.

App. 2010), wherein a division of this court considered whether the

42 Colorado Governmental Immunity Act (CGIA), §§ 24-10-101 to -120,

C.R.S. 2020, barred the plaintiff’s claims for declaratory, injunctive,

and restorative relief against municipal authorities that made

alterations to the plaintiff’s easement. In that context, the Upper

Platte division stated that “pure rules of trespass, which are

founded on possessory rights, . . . do not apply to easements.” 250

P.3d at 716 (quoting 1 Dan B. Dobbs, Law of Remedies 814 (2d ed.

1993)).

¶ 79 This statement is not applicable to the question raised here

because the division cited it in connection with an attempt to

construe specific statutory language in the CGIA. Moreover, in the

next sentence, the Upper Platte division noted that whether a

particular tort such as trespass is identified or not, a party that

interferes with an easement may be liable for damages based on

their interference. Id. at 717. Thus, Upper Platte is no bulwark

against an award of damages in this case.

¶ 80 Further, in Roaring Fork Club, L.P. v. St. Jude’s Co., the

supreme court expressly stated that an easement holder may be

entitled to economic damages for trespass when the owner of the

servient estate obstructs an easement. 36 P.3d 1229, 1234 (Colo.

43 2001) (concluding that the servient estate owner had trespassed on

the plaintiff’s easement by altering it, and, as a result, the dominant

estate owner “may well be entitled to damages”).

¶ 81 In Proper, 827 P.2d at 597, a division of this court considered

whether a court can award damages based on a servient estate

owner’s obstruction of an easement. It concluded that “if necessary

to grant an injured party complete relief for past interference with

his easement, the court may also award monetary damages.”10 Id.

To support its holding, the Proper court cited Schmidt v. Parker

Land & Cattle Co., 517 P.2d 870, 871-72 (Colo App. 1974) (not

published pursuant to C.A.R. 35(f)), a case in which another

division of this court awarded damages to an easement holder who

was denied access to his land when the servient owner obstructed

his easement with a locked gate. Although the injury to the plaintiff

in Schmidt did not include physical damages to his land or the

easement, the court awarded damages for loss of the opportunity to

10The Proper court did not explicitly identify the defendant’s installation of a fence blocking the easement as a trespass. But the supreme court so characterized it in Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1234 (Colo. 2001).

44 pasture his property and loss of the property’s reasonable rental

value. Id.

¶ 82 The holdings in these cases comport with the view set forth in

the Restatement (Third) of Property, which acknowledges that

damages for violation of easement rights are available to an

easement holder whose right of way is obstructed. Restatement

(Third) of Prop.: Servitudes § 8.3 (Am. L. Inst. 2000). It states, “[f]or

obstruction of an easement, damages and injunctions requiring

removal of the obstruction, restoration of the easement, and

prohibiting future obstruction are normally appropriate.” Id.

¶ 83 In this case, Amada alleged that the Pomeroys committed

trespass by locking the gate at the entrance to the access easement

and installing a gate on the spur road at the elk fence. Gustafson

testified that, to remedy the situation, he had to leave his residence

in Arizona, drive to Colorado, and spend two nights in a hotel room

while he sought access to his land. The Pomeroys may be liable for

these damages under Colorado law.

¶ 84 We reverse the district court’s judgment insofar as it

concluded that the Pomeroys could not have trespassed on Amada’s

easement by installing or locking gates at the access and spur

45 roads. We further reverse the court’s ruling denying Amada

damages. We remand this case for a hearing on whether the

Pomeroys’ obstruction of Amada’s easement constituted trespass,

and if so, what damages should be awarded.

VII. Conclusion

¶ 85 We affirm the judgment in part, reverse it in part, and remand

for a hearing on Amada’s trespass claim.

JUDGE LIPINSKY and JUDGE PAWAR concur.