G5 Ranch v. Carr

• Court: Colorado Court of Appeals
• Decided: July 9, 2026
• Docket: 25CA1583
• Status: Unpublished

Opinion

25CA1583 G5 Ranch v Carr 07-09-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1583 Montezuma County District Court No. 22CV30055 Honorable William Young Furse, Judge

G5 Ranch LLC,

Plaintiff-Appellee,

v.

William S. Carr and Camille R. McWhorter,

Defendants-Appellants.

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

Division V Opinion by JUDGE YUN Lipinsky and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 9, 2026

Gibbs Dye, LLP, Andrew J. Gibbs, Neil P. Cherubin, Littleton, Colorado, for Plaintiff-Appellee

Taft Stettinius & Hollister LLP, Tamir Goldstein, Harshwinder K. Badhesha, Theodore O’Brien, Denver, Colorado, for Defendants-Appellants ¶1 In this easement case, defendants, William S. Carr and

Camille R. McWhorter (jointly, the Carrs), appeal five orders that the

district court entered in favor of plaintiff, G5 Ranch LLC, on its

C.R.C.P. 105(a) claim and certified as final under C.R.C.P. 54(b).

The Carrs contend that the court erred by (1) finding the

instrument creating the easement unambiguous; (2) ruling that G5

could fence the entire length of the easement; (3) rejecting their

affirmative defense of laches; (4) relocating the easement due to

mutual mistake; and (5) denying their right to a jury trial on factual

issues affecting their pending legal claims. Both parties also

request awards of their respective appellate attorney fees and costs.

We affirm in part, reverse in part, and remand the case for further

proceedings consistent with this opinion.

I. Factual Background

¶2 The Carrs and G5 dispute the scope of an easement that the

previous owners of their properties — Katherine and the late Daniel

Bjorkman (the Bjorkmans) and John and Janet Harris (the

Harrises) — agreed to in writing (the Agreement).

¶3 The Bjorkmans previously owned both the land now owned by

G5 (the North Property) and the land now owned by the Carrs (the

1 South Property). To access both properties, the Bjorkmans used

their private road — known as the Historic Access Road — which

branches off the nearest public road, County Road M. Starting

from Road M, the Historic Access Road curves northeast, through

an RV resort operated by the Bjorkmans on the South Property,

before continuing into the North Property.

¶4 In 2012, the Bjorkmans sought to sell the North Property,

which contained a ranch, to the Harrises while retaining the South

Property. To reach the North Property from Road M, the Harrises

would have needed to travel the Historic Access Road, passing

through the RV resort’s guest sites. Both parties wanted to avoid

the Harrises driving trailers, tractors, and cattle through the

crowded RV resort to reach the ranch on the North Property.

Accordingly, as part of the sale, the parties executed and recorded

the Agreement, which, among other provisions, granted the

Harrises two road access easements.

¶5 In the “Recitals” section, the Agreement says, in relevant part,

“Harris will obtain a new entry easement, located on [the South

Property] as described herein, which will connect into the [H]istoric

2 [A]ccess [R]oad for the [North Property]. The parties desire to set

forth their agreement relative to road access and maintenance.”

¶6 The parties documented their agreement on road access in

paragraphs 1.1 through 1.4 of subsection 1 of the Agreement, titled

“Road Access and Maintenance.” Through paragraph 1.1, the

Bjorkmans conveyed to the Harrises an easement — the Entry

Easement — on which they could construct a new road — Harris

Road — to reach the North Property from Road M:

Bjorkman has granted . . . Harris, a 60 foot wide, non-exclusive, perpetual easement over [the South Property], described on [the 2012 survey] as New 60’ Road and Utility Easement, 30 feet on either side of the centerline described [in the 2012 survey] (“Entry Easement”), for the purpose of ingress, egress, utilities, and construction, use and maintenance of a road, entry features, landscaping, fences, and utilities to be located within the Entry Easement.

This paragraph goes on to say that the Bjorkmans would credit the

cost of Harris Road’s construction toward the Harrises’ purchase

price for the North Property, and that the Harrises must build

Harris Road “within the Entry Easement” and “within a reasonable

amount of time after the closing date.”

3 ¶7 Paragraph 1.2 granted the Harrises a second easement — the

Historic Access Road Easement — that allowed them to use the

existing Historic Access Road to reach their property from Road M:

Bjorkman has also granted . . . Harris, a 60 foot wide, non-exclusive, perpetual easement over [the South Property], 30 feet on either side of the centerline of the [H]istoric [A]ccess [R]oad on [the South Property], as approximately described [in the 2012 survey] to the point of intersection with the Entry Easement . . . for the purpose of ingress, egress, use and maintenance of the road, and utilities located or to be located if necessary within the Historic Access Road.

¶8 Paragraph 1.2 further provided that, upon the completion of

Harris Road, the Bjorkmans and the Harrises would each have their

own primary access road for entering their respective properties

from Road M:

After completion of [Harris Road] within the Entry Easement, the Entry Easement shall be Harris’ primary entry access from [Road M], and the [Historic Access Road] shall be used by Harris as a secondary access only for emergency purposes and utilities as necessary. Bjorkman shall continue to use the historic entry access within the Historic Access Road . . . as Bjorkman’s primary access, and may only use the Entry Easement as a secondary access for emergency purposes as necessary.

4 ¶9 Paragraph 1.3 acknowledged that both easements were for the

benefit of the Bjorkmans and the Harrises, stating, “The Entry

Easement and Historic Access Road [Easement] are for the benefit

of the Harris Property and the Resort Property as described in

paragraph 1.2.” This paragraph also clarified that the Harrises

“shall have the right to grant an easement to adjacent property

owners to use the Entry Easement and the Historic Access Road for

access and utility purposes.”

¶ 10 Because the planned Harris Road would merge into the

northernmost segment of the Historic Access Road within the South

Property, paragraph 1.4 sets forth the parties’ respective

maintenance responsibilities:

After the initial construction of [Harris Road] within the Entry Easement, Harris shall be solely responsible for all reasonable maintenance of said road (including cost thereof) to the point of intersection with the Historic Access Road, from that point within the Historic Access Road to the [North] Property, and within the [North] Property, except only for any damage caused by Bjorkman or its agents, guests, invitees, representatives or contractors, which shall be Bjorkman’s responsibility to repair. . . . Bjorkman shall be solely responsible for all reasonable maintenance of the Historic Access Road (including cost thereof) to the point of

5 intersection with the Entry Easement, except only for any damage caused by Harris or its agents, guests, invitees, representatives or contractors, which shall be Harris’s responsibility to repair.

¶ 11 Finally, subsection 5 of the Agreement section titled “General

Provisions” provides that the Agreement runs with the land and

binds all future owners of the North and South Properties. The

Harrises and Ms. Bjorkman (individually and as trustee for her

husband’s trust and attorney-in-fact for her husband) executed the

Agreement.

¶ 12 The Agreement, the accompanying warranty deed for the North

Property, and the 2012 survey were all recorded with Montezuma

County, in which the North Property and the South Property are

located. The 2012 survey visually depicts the Entry Easement

relative to the Historic Access Road and Road M, identifying the

starting point for the Entry Easement.

6 2012 Survey Showing Legal Location of the Entry Easement Relative to the Historic Access Road

¶ 13 After recording the documents, Ms. Bjorkman and Mr. Harris

determined where Harris Road should be built by walking the

property together and placing marker flags. They agreed that

Harris Road should merge into the northernmost segment of the

existing Historic Access Road within the South Property.

¶ 14 Harris Road was constructed in 2012. On its west side stood

the RV resort guest sites, a wedding ceremony site, and half of the

golf fairway. To the east were the remainder of the fairway, the

Bjorkmans’ mobile home, several employees’ mobile homes, a large

pond, and other recreational amenities for resort guests. The aerial

photograph below shows the locations of the Historic Access Road,

7 Harris Road, and Road M in relation to each other and the area

where Harris Road and the Historic Access Road overlap:

Aerial Photo of the South Property

¶ 15 After Harris Road was built, the Bjorkmans used the Historic

Access Road to enter the RV resort from Road M. However, the

Bjorkmans used Harris Road as their main access from Road M to

their own mobile home and other eastern facilities. In addition, the

Bjorkmans crossed Harris Road daily to travel between the western

and eastern halves of the South Property. At the time, the Harrises

did not object to these uses of the Entry Easement.

8 ¶ 16 In 2016, Ms. Bjorkman, in her capacity as trustee for her

husband’s trust, sold the South Property to the Carrs, who took

over operations of the RV resort. The Carrs added a second

wedding ceremony site on the eastern half of the South Property

and converted part of the old fairway into a dog park, linking the

two halves with a hiking trail. Like the Bjorkmans, the Carrs

routinely crossed Harris Road to access the eastern half of their

property, again without any objection from the Harrises. Nearly a

decade later, as Mr. Harris began negotiations to sell the North

Property to G5, he objected for the first time to the Carrs’ use of

Harris Road to access the eastern portion of their property.

¶ 17 In 2022, the Harrises completed the sale of the North Property

to G5. G5 then objected to the Carrs’ nonemergency use of Harris

Road, arguing that the Agreement plainly barred such use. G5 filed

a declaratory judgment action against the Carrs under

C.R.C.P. 105(a). Among other things, G5 sought to define the scope

of the Entry Easement through five judicial decrees:

(i) the Entry Easement is valid, ongoing, and enforceable; (ii) the Agreement is valid, ongoing, and enforceable; . . . (v) the [Carrs] have no right to prevent or hinder [G5’s] construction of improvements on the Entry

9 Easement . . . ; (vi) the [Carrs] have no right to use the Entry Easement, except in case of an emergency; . . . [and] (ix) the [Carrs] may not construct a gate across the Entry Easement . . . .

¶ 18 After finding the Agreement unambiguous, the court entered

partial summary judgment in favor of G5 and entered all five

judicial decrees. The court then determined that, before the Carrs’

pending legal counterclaims could proceed to a jury trial, it needed

to resolve two issues at a bench trial: (1) the location of the Entry

Easement relative to Harris Road and (2) the Carrs’ use rights

where the Historic Access Road overlaps with the Entry Easement.

¶ 19 Following the bench trial, the court relocated the Entry

Easement based on a finding of mutual mistake and concluded that

the Carrs had no right to use any portion of the Entry Easement

except for emergencies — even where it overlaps with their primary

access road. The court later clarified that the Entry Easement’s

precise relocation corresponded to the location of Harris Road as

actually built.

¶ 20 The Carrs appeal all five orders.

10 II. Finding of Unambiguity

¶ 21 The Carrs contend that the district court erred by finding that

the Agreement language creating the Entry Easement was

unambiguous. They further argue that the court erred by

concluding that the Agreement unambiguously (1) limited the Carrs’

right to use the Entry Easement except for emergencies and (2) gave

G5 the right to fence off the entire length of the Entry Easement.

We agree that the district court erred.

A. Additional Background

¶ 22 In January 2024, the court held an evidentiary hearing to

determine whether paragraphs 1.1 through 1.4 of the Agreement

were ambiguous. The court framed the issues as whether the

Agreement “permits [G5] to construct fencing within the defined

‘Entry Easement’” and “whether the [Carrs] may use the same Entry

Easement for non-emergency purposes.” G5 argued that the

Agreement clearly authorized it to construct fencing within the

Entry Easement and barred the Carrs from using the Entry

Easement for any nonemergency purposes. The Carrs, however,

argued that the Agreement was ambiguous regarding the scope of

use, noting that both they and the Bjorkmans had routinely used

11 the Entry Easement for a decade without objection from the

Harrises.

¶ 23 Based on Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d

1229 (Colo. 1998), the court noted that it had the discretion to

conditionally admit extrinsic evidence to determine whether the

Agreement was ambiguous, with the understanding that such

evidence would be struck if the court found the Agreement

unambiguous. At the hearing, the court heard testimony from

several witnesses. The court described such testimony as follows:

Tom Morse testified that he was the transaction broker who represented both Mr. Bjorkman and Mr. Harris in the sale of the North Property. Morse described . . . the parties’ mutual desire to [have] . . . separate entrances. Per Morse, Bjorkman didn’t want to endure Harris’ agricultural traffic traveling through the RV Park (South Property) and Harris wanted to avoid traveling through the RV Park to access his property. Additionally, Harris sought a sense of privacy which could be accomplished through separate entrances. Finally, Morse testified that both Bjorkman and Harris wanted the Agreement to contain easement usage exceptions for emergency situations.

Like Morse’s testimony, John Harris described a need for access to the North Property. Harris testified his primary access was via the Entry Easement and the Historic Access Road was to

12 be used only in case of an emergency. Conversely, Harris stated Bjorkman’s primary access was via the Historic Access Road with emergency, secondary access being available by way of the Entry Easement. Finally, Harris addressed his interpretation of the term “nonexclusive” easement at issue by recalling that because either party could use the other’s easement for emergency purposes, they became nonexclusive.

While other witnesses including Ms. Bjorkman recalled periods of time when use of the Entry Easement went beyond emergency purposes and the relationship between property owners was more cordial than present, such events and potential waivers are not particularly relevant here nor dispositive of the parties’ intent. Likewise, Ms. Bjorkman’s speculative testimony regarding fences and entry features is not helpful to the Court’s determination of the issues. Ms. Bjorkman credibly recalled not being involved in the negotiation of the Agreement and instead was far more participatory in water issues.

¶ 24 Following the hearing, the court issued an order concluding

that the Agreement is “straightforward and unambiguous” — a

determination unaltered by the testimony presented by the parties.

Although the court found that Mr. Morse’s and Mr. Harris’s

testimony was relevant and compelling concerning the parties’

original intent, it found Ms. Bjorkman’s testimony “not particularly

relevant here nor dispositive of the parties’ intent.” Ultimately,

13 though, the court determined that “[n]o testimony or evidence

presented had altered” its “initial interpretation of the Agreement”

as “straightforward and unambiguous.”

¶ 25 In September 2024, the district court issued an order granting

G5’s motion for partial summary judgment. As relevant to this

appeal, the court incorporated its prior finding of unambiguity to

declare:

(i) the [E]ntry [E]asement is valid, ongoing, and enforceable,

(ii) the Agreement, which creates the easement, is valid, ongoing, and enforceable,

(iii) the [Carrs] have no right to prevent or hinder Plaintiffs’ construction of improvements on the [E]ntry [E]asement, pursuant to the Agreement,

(iv) the [Carrs] have no right to use the [E]ntry [E]asement, except in the case of an emergency, and

(v) [The Carrs] may not construct a gate across the [E]ntry [E]asement.

¶ 26 Because paragraph 1.1 of the Agreement explicitly lists

“fences” followed by “within the Entry Easement,” the court

reasoned that the Agreement plainly authorized G5 to build

improvements on the Entry Easement, like a north-south fence

14 running along both sides of the Entry Easement. The only limit on

the installation of “fences” was that they be “within” the Entry

Easement. Because paragraph 1.2 of the Agreement states that the

South Property owners “may only use the Entry Easement as a

secondary access for emergency purposes as necessary,” the court

reasoned that any nonemergency use was strictly disallowed.

Although the Carrs argued this outcome contradicted the word

“nonexclusive” in paragraphs 1.1 and 1.2, the court explained that

the availability of emergency use satisfied the “nonexclusive”

descriptions.

¶ 27 After the court determined that the Agreement was

unambiguous, G5 constructed a fence along both sides of the Entry

Easement, starting seventy-five feet north of Road M, crossing the

intersection with the Historic Access Road, and extending to the

southern border of the North Property. In addition, G5 installed

several locked gates along the Entry Easement, including the

segment where it intersects the Historic Access Road. The Carrs

allegedly received a code to the gates for emergency access.

15 B. Standard of Review and Relevant Law

¶ 28 We review de novo the existence and scope of an expressly

created easement by interpreting the conveyance instrument. Gold

Hill Dev. Co., L.P. v. TSG Ski & Golf, LLC, 2015 COA 177, ¶ 43. If

the language of the instrument creating an easement clearly and

completely addresses the issue at hand, the court enforces the

easement as written to effectuate the parties’ intent. Lazy Dog

Ranch, 965 P.2d at 1236; see also Restatement (Third) of Prop.:

Servitudes § 4.1 cmt. d (A.L.I. 2000) (“Expressly created servitudes

are typically the result of contractual transactions,” and the

principles of contract law “should be applied to determine the intent

of the parties and the meaning of the terms expressed.”).

¶ 29 If a conveyance instrument is ambiguous, the court must

consider extrinsic evidence concerning the relevant “circumstances

surrounding the grant” to determine the parties’ intent, including

the location and character of the properties burdened and benefited by the servitude, the use made of the properties before and after creation of the servitude, the character of the surrounding area, the existence and contours of any general plan of development for the area, and consideration paid for the servitude.

16 Lazy Dog Ranch, 965 P.2d at 1236-37 (quoting Restatement (Third)

of Prop.: Servitudes § 4.1 cmt. c (A.L.I., Tentative Draft No. 4,

1994)). An instrument is ambiguous if, when construed as a whole,

it is susceptible of more than one reasonable interpretation. See

Hoang v. Assurance Co. of Am., 149 P.3d 798, 801 (Colo. 2007);

Dep’t of Transp. v. First Place, LLC, 148 P.3d 261, 264 (Colo. App.

2006). However, extrinsic evidence cannot be used to contradict an

instrument’s plain language. Lazy Dog Ranch, 965 P.2d at 1237.

Thus, “the language used in creating a servitude ordinarily should

be interpreted to accord with the meaning an ordinary purchaser

would ascribe to it in the context of the parcels of land involved.”

Id. (citation omitted).

¶ 30 If the conveyance instrument is “silent as to a matter that

affects the operation of the [easement]” or remains ambiguous “even

after reference to all the relevant circumstances,” then the court

should consider the “system of ‘default rules’ that supply necessary

terms of the easement.” Id. (citing Restatement (Third) of Prop.,

introductory note to chapter 4, §§ 4.3 to 4.12 (A.L.I., Tentative Draft

No. 4, 1994)). Generally, the default rules apply a reasonableness

standard to the specific issue raised because “it is presumed that,

17 absent clear authorization in the written instrument for the

particular use, the parties to the original instrument did not intend

unreasonable use of the easement.” Id. at 1237-38.

¶ 31 An easement is a legal property right that grants the easement

holder (the dominant estate) a nonpossessory interest in land that

is owned by another (the servient estate). Wright v. Horse Creek

Ranches, 697 P.2d 384, 387 (Colo. 1985). This nonpossessory

interest “generally authorizes limited uses of the burdened property

for a particular purpose.” Restatement (Third) of Prop.: Servitudes

§ 1.2 cmt. d (A.L.I. 2000). The easement holder may use the land

as expressly allowed by the conveyance instrument and for any

uses reasonably necessary to fulfill the easement’s intended

purpose, provided that such use does not unreasonably interfere

with the servient estate’s use and enjoyment of its land. Amada

Fam. Ltd. P’ship v. Pomeroy, 2021 COA 73, ¶ 67. The owner of the

servient estate retains legal title and the right to possess the land.

Wright, 697 P.2d at 387; see Lazy Dog Ranch, 965 P.2d at 1234 (An

easement “does not carry any title to the land over which it is

exercised, nor does it serve to dispossess the landowner.”).

18 ¶ 32 While exclusive easements permit the dominant estate to

exclude others, Colorado law presumes easements to be

nonexclusive. Skidmore v. First Bank of Minneapolis, 773 P.2d 587,

589 (Colo. App. 1988); Lazy Dog Ranch, 965 P.2d at 1234 n.5. A

nonexclusive easement means that the landowner of “the servient

estate enjoys all the rights and benefits of proprietorship consistent

with the burden of the easement; while the rights of the owner of

the dominant estate are limited to those connected with use of the

easement.” Lazy Dog Ranch, 965 P.2d at 1234.

¶ 33 In sum, the servient estate owner may make “any use of the

burdened property” unless (1) the use was expressly disallowed by

the conveyance instrument; (2) the use unreasonably interferes with

the easement holder’s enjoyment of the easement for its intended

purpose; or (3) the conveyance instrument “expressly designate[s]

[the easement] as ‘exclusive.’” Id. at 1234 n.5, 1238. Conversely,

the dominant estate owner may use the land (1) as expressly

allowed in the conveyance instrument; or (2) as reasonably required

to enjoy the purposes expressed in the conveyance instrument,

unless such use would unreasonably interfere with the enjoyment

of the servient estate. Amada Fam., ¶ 67.

19 C. Discussion

¶ 34 We disagree with the district court’s finding that the

Agreement unambiguously barred the Carrs from using the Entry

Easement outside of emergencies and allowed G5 to construct

fencing along the length of the Entry Easement.

1. The Carrs’ Right to Use the Entry Easement

¶ 35 Construing the Agreement as a whole, it does not support the

district court’s finding that the Carrs’ use of the Entry Easement is

limited solely to emergencies. Paragraph 1.2 provides that “the

Entry Easement shall be Harris’ primary entry access” from Road

M, while “Bjorkman may only use the Entry Easement as a

secondary access for emergency purposes as necessary.”

¶ 36 This language only limits the Carrs’ use of the Entry Easement

as road access to and from Road M. In other words, the Agreement

clearly prohibits the Carrs from using the Entry Easement as road

access to Road M except in emergencies “as necessary.” However,

the Agreement is silent regarding other uses — such as crossing

Harris Road east-to-west and vice versa to access either half of the

South Property. Thus, the Agreement does not unambiguously

prohibit these other uses.

20 ¶ 37 This narrower interpretation is supported by the other

language in the Agreement:

• Paragraph 1.2 expressly designates the Entry Easement as

“non-exclusive,” meaning that the Carrs “enjoy[] all the

rights and benefits of proprietorship consistent with the

burden of the easement.” Lazy Dog Ranch, 965 P.2d at

1234.

• Paragraph 1.3 describes the Entry Easement as benefitting

both the Harris Property (G5’s property) and the Resort

Property (the Carrs’ property).

• According to the Recitals, the Agreement does not limit all

conceivable uses of the Entry Easement but expressly limits

only a subset of uses — those uses “relative to road access.”

¶ 38 Our conclusion is not altered by the district court’s attempt to

reconcile the “non-exclusive” designation. After finding that the

Agreement permitted only emergency use of the Entry Easement by

the Carrs, the district court reasoned that this restriction was

consistent with the “non-exclusive” designation because the Carrs

retained “emergency” use of the Entry Easement. But this

interpretation effectively grants G5 exclusive or fee simple control of

21 the Entry Easement because virtually all landowners possess the

right to enter a neighbor’s property in emergencies. See

Restatement (Second) of Torts § 197 (A.L.I. 1965); § 18-1-702,

C.R.S. 2025. Thus, by disregarding the meaning of “non-exclusive,”

the court’s interpretation fails to give harmonious effect to the

whole Agreement.

¶ 39 The “non-exclusive” designation further underscores that the

Agreement is ambiguous as to the full scope of the Carrs’ permitted

uses of the Entry Easement. By finding that the Carrs were limited

to emergency use, the district court presumed the Agreement must

enumerate all permitted uses and penalized the Carrs for any

omission. But this approach is incorrect. As owners of the servient

estate burdened by a “non-exclusive” easement, the Carrs are

presumed to retain “all the rights and benefits of proprietorship”

except those expressly limited by the Agreement. See Lazy Dog

Ranch, 965 P.2d at 1234.

¶ 40 For all these reasons, we reverse the district court’s finding

that the Agreement unambiguously restricted the Carrs’ use of the

Entry Easement to emergencies and remand the case to the district

court to consider extrinsic evidence to determine the parties’ intent.

22 On remand, the court must consider the relevant “circumstances

surrounding the grant”; apply the default rules, specifically,

Restatement (Third) of Property: Servitudes § 4.9 (A.L.I. 2000); and

determine the reasonableness of the Carrs’ retained uses, such as

whether the Carrs’ crossing over Harris Road unreasonably

interferes with G5’s enjoyment of the Entry Easement for road

access. Lazy Dog Ranch, 965 P.2d at 1236-37.

2. G5’s Right to Fence Off the Entry Easement

¶ 41 Reading the Agreement as a whole, it is ambiguous whether

G5 may construct fencing along the entire length of the Entry

Easement. Again, the Entry Easement is described as

“non-exclusive,” meaning that G5 may use it (1) as expressly

allowed in the Agreement or (2) as reasonably required to fulfill the

Entry Easement’s purpose — so long as such use does not

unreasonably interfere with the Carrs’ enjoyment of the South

Property. See Amada Fam., ¶ 67.

¶ 42 The Agreement does not define the scope of permissible

“fences.” Paragraph 1.1 states only that the Entry Easement is

created “for the purpose of ingress, egress, utilities, and

construction, use and maintenance of a road, entry features,

23 landscaping, fences, and utilities to be located within the Entry

Easement.” While the word “fences” contemplates some fencing, it

does not specify the extent of the fencing, nor does it expressly

authorize fencing the entire length of the Entry Easement. The

district court thus erred by concluding that the Agreement

expressly authorized continuous fencing along the length of the

Entry Easement.

¶ 43 Instead, the Agreement’s reference to “fences” is ambiguous

because it is susceptible to two reasonable interpretations. On one

hand, the term “fences” could be read to grant G5 the right to

construct fencing anywhere within the Entry Easement. Thus, it

would support the district court’s view that the Carrs could not

prevent G5’s fencing so long as the fencing remained within the

easement. On the other hand, the “non-exclusive” designation

preserves the Carrs’ right to use the Entry Easement alongside

G5 — except as expressly limited by the Agreement — and to enjoy

the South Property free from unreasonable interference.

Accordingly, under a reasonable interpretation of the “fences”

provision, G5 may not construct a continuous fence bisecting the

servient estate, as such fencing would contradict the

24 “non-exclusive” grant and unreasonably interfere with the Carrs’

enjoyment of their property. See Wykoff v. Barton, 646 P.2d 756,

759 (Utah 1982) (rejecting the dominant estate’s request to fence off

a “private road” access easement because such a fence “would have

the practical effect of depriving [the servient estate owner] entirely of

the use of her land”).

¶ 44 We therefore reverse the court’s finding that the Agreement

unambiguously allowed G5 to fence off the Entry Easement and

remand the case to the district court to consider extrinsic evidence

to determine the parties’ intent. On remand, the court must

consider the relevant “circumstances surrounding the grant”; apply

the default rules, specifically, Restatement (Third) of Property:

Servitudes § 4.10 (A.L.I. 2000); and determine the reasonableness

of G5’s lengthwise fence — namely, whether the fence unreasonably

interferes with the Carrs’ enjoyment of the South Property. Lazy

Dog Ranch, 965 P.2d at 1236-37.

III. G5’s Right to Fence Overlapping Segment

¶ 45 The Carrs contend that the district court erred as a matter of

law by permitting G5 to build a lengthwise fence that obstructs the

Historic Access Road. We agree.

25 A. Additional Background

¶ 46 The Entry Easement and the Historic Access Road overlap at

the northernmost segment of the South Property. At the southern

end of that overlap, Harris Road terminates and merges into the

Historic Access Road, which continues to the southern boundary of

G5’s North Property. G5’s fence extends through this overlapping

segment and, therefore, across the Historic Access Road up to the

southern property line. G5 installed locked gates in the fence on

both the east and west sides of the overlapping segment. William

Carr testified that this effectively cut off the longstanding access

route that the Carrs used to reach the eastern half of their property.

Consequently, they were forced to build a new road to reach that

side of their property.

¶ 47 Following a two-day bench trial, the district court ruled that

G5 had “the right to install fencing within the entirety of the Entry

Easement, including the portion that intersects with the Historic

Access Road,” so long as G5 supplied the Carrs with the code or

keys to the locked gates. The Carrs objected, arguing that this

impeded their primary access road. The court, however, concluded

that the Carrs’ “emergency-use only” limitation applied to the entire

26 Entry Easement, including its intersection with the Historic Access

Road, relying on the language in paragraph 1.2 stating that the

Carrs “may only use the Entry Easement as a secondary access for

emergency purposes as necessary.” The court disregarded

paragraph 1.2’s language that the Carrs “shall continue to use the

historic entry access within the Historic Access Road . . . as [their]

primary access,” reasoning as follows:

This language does not grant unconstrained access to the entirety of the Historic Access Road. Rather, it identifies where [the Carrs] may access the South Property from County Road M . . . . The “historic entry access within the Historic Access Road” identifies a specific point in the Historic Access Road that [the Carrs] must use for non-emergency access to/from the South Property. Otherwise, [the Carrs’] right to use the Historic Access Road, as the servient estate owners, is limited by the Agreement. The Agreement forbids [the Carrs] from using the Entry Easement for any non-emergency purpose, without regard to location within the Entry Easement and including the intersection with the Historic Access Road.

B. Discussion

¶ 48 The district court’s decision to permit G5’s fencing — after

concluding that the Carrs were limited to emergency use in the

overlapping segment — contradicts the Agreement’s plain language.

27 Paragraph 1.2 expressly states the Carrs “shall use the Historic

Access Road” as their “primary access,” while G5 may use it only

“as a secondary access for emergency purposes and utilities as

necessary.” By authorizing G5 to install locked, gated fences at the

intersection of the Entry Easement and Historic Access Road, the

court effectively granted G5 — whose rights to the Historic Access

Road are limited — unilateral control over the Carrs’ “primary”

access route.

¶ 49 We have already determined that the Agreement does not

unambiguously authorize G5 to fence the entire Entry Easement

and have remanded the issue for further proceedings.

Paragraph 1.1 permits “fences” within the Entry Easement, but it

does not authorize G5 to erect fencing that interferes with the

Carrs’ primary access road. Interpreting the Agreement to permit

G5 to fence off the Entry Easement where it overlaps the Carrs’

primary access road finds no support in that document’s text.

Fencing — together with locked gates — at this intersection does

more than regulate the Carrs’ use; it effectively eliminates their

independent access right and imposes a substantial new burden on

the servient estate. See Lazy Dog Ranch v. Telluray Ranch Corp.,

28 923 P.2d 313, 317 (Colo. App. 1996) (“Locked gates are usually

considered an unreasonable burden, even if the easement holder is

provided with keys.”).

¶ 50 By ruling otherwise, the court undermined its own

interpretation of the nearly reciprocal language governing G5’s

primary access road. When the Agreement designated the Entry

Easement as G5’s “primary entry access” and limited the Carrs’ use

to “emergency purposes,” the court interpreted this language as

allowing the Carrs only emergency use. Yet when the Agreement

designated the Historic Access Road as the Carrs’ “primary access”

and limited G5’s use to “emergency purposes,” the court

nevertheless restricted the Carrs to emergency use in the

overlapping segment. Neither party’s rights should be subordinate

to the other’s at this intersection. The only reasonable

interpretation is to remove the obstruction — namely, the fences —

at the overlapping segment so that both parties retain their primary

access roads.

¶ 51 Accordingly, we reverse the district court’s finding that the

Agreement permitted G5 to fence off the Entry Easement where it

29 overlaps the Historic Access Road. Such an interpretation of the

Agreement is incorrect as a matter of law.

IV. Affirmative Defense of Laches

¶ 52 The Carrs contend the district court erred by determining that

the doctrine of laches does not apply. The Carrs argue that because

the North Property owners had not previously exercised their right

to construct a fence, the doctrine of laches precludes G5’s claim.

We disagree.

¶ 53 The district court rejected the Carrs’ laches defense, finding

that they “failed to establish [G5] had a duty to build a fence.” The

court explained that “[t]he plain text of the Agreement does not

require [G5] to build a fence, nor does it establish a time limit for

when they may build a fence.” It therefore concluded that “[t]he

doctrine of laches does not apply to parties who have no duty to

act.”

¶ 54 The availability of an affirmative defense is a question of law

subject to de novo review. In re Marriage of Johnson, 2016 CO 67,

¶ 9. Laches is an affirmative defense requiring a showing that a

party’s unconscionable delay in enforcing its rights prejudiced the

opposing party. Calhan Chamber of Com. v. Town of Calhan,

30 166 P.3d 200, 204 (Colo. App. 2007). “A laches defense comprises

three elements: (1) full knowledge of the facts by the party against

whom the defense is asserted; (2) unreasonable delay by that party

in pursuing an available remedy; and (3) intervening reliance by

and prejudice to the party asserting the defense.” In re Marriage of

Kann, 2017 COA 94, ¶ 40.

¶ 55 We agree with the district court that laches is not a viable

defense here. The North Property owners — the Harrises and later

G5 — had the right, but not the obligation, to construct fencing

within the easement. Laches cannot defeat a claim when the

alleged delay concerns an action that the party was never required

to undertake. See City of Thornton v. Bijou Irrigation Co., 926 P.2d

1, 74 (Colo. 1996) (“[L]aches is not applicable to a party who has no

duty to act.”). We therefore affirm the district court’s ruling on

summary judgment dismissing the Carrs’ laches affirmative

defense.

V. Relocation of the Entry Easement Based on Mutual Mistake

¶ 56 The Carrs contend that the district court erred by using its

equitable power to relocate the Entry Easement based on the

parties’ alleged mutual mistake regarding the true corner

31 monument marking the starting point of the Entry Easement.

While we agree that mutual mistake is not a valid basis for

relocation in this case, we affirm the court’s relocation of the Entry

Easement on other grounds. See Deutsche Bank Tr. Co. Ams. v.

Samora, 2013 COA 81, ¶ 38 (“An appellate court may affirm the

trial court’s ruling based on any grounds that are supported by the

record.”).

¶ 57 At the bench trial, the parties disputed whether the correct

corner monument was the “Maness Monument” or the “Gibbons

Monument.” The 2012 survey, recorded with the Agreement and

the Bjorkman-Harris warranty deed, identified the Maness

Monument as the starting point for measuring the Entry Easement.

The Carrs presented evidence that Harris Road was built

predominantly east of the Entry Easement when measured by using

the Maness Monument as the starting point. Conversely, if the

Entry Easement were measured by using the Gibbons Monument

as the starting point, Harris Road would align with the Entry

Easement, though the Entry Easement would not reach Road M.

Testifying for G5, Mr. Harris explained that, shortly after executing

32 the Agreement, he and Ms. Bjorkman chose the route of Harris

Road by walking the path together and placing flag markers without

reference to the 2012 survey.

¶ 58 The court relocated the Entry Easement by designating the

Gibbons Monument — not the Maness Monument — as the true

corner monument. The court found that the surveyor who

conducted the 2012 survey must have intended to use the Gibbons

Monument, citing an expert who testified that using the Maness

Monument as the starting point would have caused the Entry

Easement to extend at least twenty-six feet into the North

Property — an “unrealistic” blunder. The court also noted that

Ms. Bjorkman and Mr. Harris jointly walked and staked the

intended route of Harris Road, and that its as-built location

remained undisputed for twelve years.

¶ 59 Accordingly, the court’s bench trial order required that the

2012 survey be reformed to designate the Gibbons Monument as

the corner monument, “[m]aking the [c]enterline of Harris Road the

[s]ame as the [c]enterline of the Entry Easement.” At G5’s request,

the court later clarified that its ruling on the Gibbons Monument

was intended only to correct the 2012 survey’s reference to the

33 Maness Monument, and it declared that the “centerline of Harris

Road as it presently exists, from County M to [North Property], is

hereby declared to be the Centerline of the Entry Easement.”

B. Standard of Review and Relevant Law

¶ 60 We review a judgment following a bench trial as a mixed

question of fact and law. See Kroesen v. Shenandoah Homeowners

Ass’n, 2020 COA 31, ¶ 55. We review the district court’s factual

findings for clear error but review its legal conclusions de novo. Id.

The court’s interpretation of a recorded instrument entails legal

conclusions we review de novo. Gold Hill, 378 P.3d at 828.

¶ 61 Under Colorado law, when a land survey accompanies a deed,

the land surveyor must establish a “monument” on the ground — a

durable cap bearing the surveyor’s license number placed atop a

pole at the corner point of a property boundary, or “as close as

practicable to the true corner.” §§ 38-51-102 to -105, C.R.S. 2025.

The monument serves as the starting point for measuring the

contours of an easement in accordance with its written legal

description. Id.

¶ 62 Under the doctrine of mutual mistake, a court may exercise its

equitable discretion to modify a written instrument only if the

34 evidence “clearly and unequivocally” demonstrates that the

“instrument does not represent the true agreement of the parties.”

Md. Cas. Co. v. Buckeye Gas Prods. Co., 797 P.2d 11, 13 (Colo.

1990); see also Ranch O, LLC v. Colo. Cattlemen’s Agric. Land Tr.,

2015 COA 20, ¶¶ 18, 35 (citing Md. Cas. Co., 797 P.2d at 13, to

uphold the district court’s reformation of an easement based on

mutual mistake). A mutual mistake occurs when both parties to

the instrument share the same “erroneous conception” about its

terms, such as the easement’s location. Ranch O, LLC, ¶ 18. “An

essential prerequisite to a court’s power to reform a contract on the

ground of mutual mistake is the existence of a prior agreement that

represents the actual expectations of the parties and provides the

basis upon which a court orders reformation.” Md. Cas. Co.,

797 P.2d at 13 (emphasis added).

¶ 63 Additionally, Colorado law permits a written contract to be

modified by the parties’ course of performance. Woods v. Monticello

Dev. Co., 656 P.2d 1324, 1327 (Colo. App. 1982); see also Lazy Dog

Ranch, 965 P.2d at 1235-36 (stating that the instrument creating

an easement is interpreted according to the interpretive rules of

contract law). “Modification of a written agreement must be

35 demonstrated by clear and satisfactory evidence” showing “[t]he

same meeting of the minds . . . as was necessary to make the

contract in the first instance.” Grizzly Bar, Inc. v. Hartman,

454 P.2d 788, 791 (Colo. 1969). When, as here, the instrument

states that modifications must be made in writing, the conduct

must be even clearer: It must be “so pervasive that in the eyes of a

reasonable [person] it ‘spoke louder than [the] word’ . . . of the

[written modification] clause, which in effect counseled against

reliance on conduct indulging default.” Woods, 656 P.2d at 1327

(quoting Westinghouse Credit Corp. v. Shelton, 645 F.2d 869, 874

(10th Cir. 1981)).

¶ 64 Indeed, courts in other jurisdictions have permitted the

easement holder and the servient estate owner to relocate an

easement by mutual consent — express or implied from use and

acquiescence — even when the written instrument specifies a

different location. Red Mountain, LLC. v. Fallbrook Pub. Util. Dist.,

48 Cal. Rptr. 3d 875, 891 (Ct. App. 2006); see also Johnstone v.

Bettencourt, 16 Cal. Rptr. 6, 8-9 (Ct. App. 1961) (parties’ mistaken

use of a route different from the actual route amounted to

relocation by mutual consent); Henning v. Neisz, 268 N.E.2d 310,

36 316 (Ind. Ct. App. 1971) (easement holder who used a new route for

over five years was found to have “acquiesced in the relocation of

the easement and . . . given his implied consent to the servient

estate owner for such relocation”); Ericsson v. Braukman, 824 P.2d

1174, 1177 (Or. Ct. App. 1992) (implicit agreement to relocate the

easement when the servient estate owners did not object to the

easement holder’s improvement and use of a new location); Vrazel v.

Skrabanek, 725 S.W.2d 709, 711-12 (Tex. 1987) (relocation by

mutual consent and estoppel when the servient estate owner

obstructed the platted easement and permitted use of an improved

alternate route); Buxton v. Murch, 457 S.E.2d 81, 84-85 (Va. 1995)

(“Even where there has been a definite location of an easement, it

may be changed with the express or implied consent of the persons

interested. Such consent may be implied from the acts and

acquiescence of the parties, and an estoppel to claim a former

location to be the true one arises from acquiescence in the change.”

(quoting Wagoner v. Jack’s Creek Coal Corp., 101 S.E.2d 627, 630

(Va. 1958))).

37 C. Discussion

¶ 65 As a matter of law, reformation of the 2012 survey on the

basis of mutual mistake was improper. First, the record lacks a

“prior agreement that represents the actual expectations of the

parties,” which is an “essential prerequisite to a court’s power to

reform a contract on the ground of mutual mistake.” Md. Cas. Co.,

797 P.2d at 13. Second, the evidence does not “clearly and

unequivocally” demonstrate that both parties to the Agreement

intended to use the Gibbons Monument as a reference point. Id.

The court relied on the testimony of G5’s surveyor, who explained

that the 2012 survey likely identified the Maness Monument

instead of the Gibbons Monument by mistake. But the evidence

showed that the parties apparently charted the course of Harris

Road without reference to either monument. And crucially, the

stated purpose for the Agreement was to provide Harris, and later

G5, with a primary entry access road from Road M — using the

Gibbons Monument as a reference point would have resulted in the

Entry Easement not reaching Road M.

¶ 66 Nevertheless, the district court relied on several other

grounds — chiefly, the parties’ conduct — to support relocating the

38 Entry Easement. The court found that, after executing the

Agreement, Ms. Bjorkman and Mr. Harris physically walked and

staked the intended route of Harris Road without regard to the

2012 survey’s specifications. They simply selected a route that

made practical sense to both of them. For the next twelve years,

the Bjorkmans and Harrises, and later the Carrs, routinely used

Harris Road as built.

¶ 67 During that period, neither the Bjorkmans nor the Carrs

objected to Harris Road’s location. This course of conduct clearly

and satisfactorily demonstrates the parties’ mutual agreement to

vary the terms of the instrument by situating Harris Road in its

present location. See Woods, 656 P.2d at 1327; see also

Restatement (Third) of Prop.: Servitudes § 4.8 cmt. c (A.L.I. 2000)

(“Even if the instrument specifies a different location, the location is

fixed by the placement of the improvements unless the language or

circumstances lead to the conclusion that the initial location is

temporary.”). Thus, although we do not hold that the parties made

a mutual mistake, based on the parties’ course of performance, we

affirm the court’s decision to modify the Entry Easement’s location

39 so that Harris Road, as built, becomes its centerline. See Deutsche

Bank, ¶ 38.

VI. Right to a Jury Trial

¶ 68 The Carrs contend that the district court improperly deprived

them of their right to a jury trial by resolving two issues at the

bench trial — (1) the location of the Entry Easement relative to

Harris Road and (2) the Carrs’ use rights where the access roads

overlap — because the resolution of these issues affected their

pending legal counterclaims. We are not persuaded.

¶ 69 First, the Carrs’ use rights where the roads overlap do not

present a factual issue because the district court treated this

matter as a question of law. See Owens v. Tergeson, 2015 COA

164, ¶ 17 (“The interpretation of a deed and the determination of

whether it is ambiguous are questions of law . . . .”). In its order

following the bench trial, the court merely clarified that its prior

partial summary judgment ruling — that “the [Carrs] have no right

to use the Entry Easement, except in case of an emergency” —

applied to the portion of the Entry Easement overlapping the

Historic Access Road. Although we reverse the district court’s order

on this point, this does not mean that the Carrs were deprived of

40 their right to a jury trial. The interpretation of an instrument

remains a matter for the court to resolve, regardless of whether the

language is ambiguous or clear. See Moeller v. Ferrari Energy, LLC,

2020 COA 113, ¶ 15.

¶ 70 Second, the Carrs were not entitled to a jury trial on the

remaining issue under C.R.C.P. 105(a): determining the location of

the Entry Easement relative to Harris Road. See C.R.C.P. 105(a)

(requiring the court to “grant full and adequate relief so as to

completely determine the controversy and enforce the rights of the

parties” and allowing the court “at any time after the entry of the

decree [to] make such additional orders as may be required in aid of

such decree”). This issue required the court to exercise its

equitable power to reform the conveying instrument. See Bd. of

Comm’rs v. Timroth, 87 P.3d 102, 105 (Colo. 2004) (“Reformation of

an instrument is an equitable remedy.”); Casey v. Colo. Higher

Educ. Ins. Benefits All. Tr., 2012 COA 134, ¶ 48 (“Remedies for

mistake, such as contract reformation and rescission, are equitable

in nature.”). Although the court addressed factual issues at the

bench trial, “[i]t is not the nature of the issues of fact to be tried

which determines whether there is a right to a jury, but the

41 character of the action in which they are presented.” Fed. Deposit

Ins. Corp. v. Mars, 821 P.2d 826, 830 (Colo. App. 1991). “If the

relief sought is equitable in nature, there is no right to a jury trial.”

Id. Because the relief sought was reformation of the conveying

instrument, the Carrs were not entitled to a jury trial on that issue.

¶ 71 Thus, the court did not violate the Carrs’ right to a jury trial

by resolving these two issues. The Carrs retain their right to a jury

trial on any legal counterclaims that have yet to be resolved.

VII. Attorney Fees and Costs

¶ 72 Both the Carrs and G5 seek appellate attorney fees and costs

under C.A.R. 39.1 and section 5(g) of the Agreement. Section 5(g)

provides: “Should litigation be necessary to enforce any term or

provision of this Agreement, or to collect any portion of amounts

payable under this Agreement, all reasonable litigation expenses,

collection fees, court costs, and attorney fees shall be paid by the

non-prevailing party.” Given our resolution of this appeal, neither

party qualifies as “the non-prevailing party” under section 5(g). See

In re Marriage of Kann, ¶ 83 (denying request for appellate attorney

fees where both parties succeeded in part). Accordingly, we deny

42 both parties’ requests for appellate attorney fees and costs under

C.A.R. 39.1 and section 5(g).

VIII. Disposition

¶ 73 Our disposition is as follows:

• We reverse the district court’s finding that the Agreement

unambiguously restricted the Carrs’ use of the Entry

Easement to emergencies and remand for further

proceedings to determine the parties’ intent.

• We reverse the court’s finding that the Agreement

unambiguously allowed G5 to fence off the entire Entry

Easement and remand for further proceedings to determine

the parties’ intent.

• We reverse the court’s finding that the Agreement permitted

G5 to fence off the Entry Easement where it overlaps the

Historic Access Road.

• We affirm the court’s dismissal of the Carrs’ affirmative

defense of laches on summary judgment.

• We affirm the court’s decision to modify the location of the

Entry Easement so that Harris Road, as it currently exists,

becomes the centerline of the Entry Easement.

43 • We affirm the court’s denial of a jury trial regarding (1) the

location of the Entry Easement relative to Harris Road and

(2) the Carrs’ use rights where the access roads overlap.

• We deny both parties’ requests for appellate attorney fees

and costs.

• We remand the case to the district court for further

JUDGE LIPINSKY and JUDGE SCHUTZ concur.