25CA1087 L and M v Proctor 04-23-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1087 Delta County District Court No. 23CV30017 Honorable Mary E. Deganhart, Judge
L and M Fuller Family Partnership, LLLP, a Colorado limited liability limited partnership, and L and M Fuller, LLC, a Colorado limited liability corporation,
Plaintiffs-Appellees,
and
Dakota Darnall,
Third Party Defendant-Appellee,
v.
Kathrine Sue Proctor, Acacia Ator, Orin Proctor, and Nadia Van Haele,
Defendants-Appellants.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED WITH DIRECTIONS
Division VII Opinion by JUDGE PAWAR Johnson and Gomez, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 23, 2026
Brian Kidnay, P.C., Brian Kidnay, Montrose, Colorado, for Plaintiffs-Appellees and Third Party Defendant-Appellee
Conerly & Callahan, LLC, Mindi L. Conerly Millican, Ryan F. Callahan, Montrose, Colorado, for Defendants-Appellants ¶1 In this easement dispute, defendants, Kathrine Sue Proctor,
Acacia Ator, Orin Proctor, and Nadia Van Haele (collectively, the
Proctor parties), appeal the district court’s judgment granting a
prescriptive easement across their property to plaintiffs, L and M
Fuller Family Partnership, LLLP, and L and M Fuller, LLC
(collectively, the Fuller parties). We affirm in part, reverse in part,
and remand with directions.
I. Background
¶2 The Proctor and Fuller parties own real property near one
another. Part of the Fuller parties’ property (the Fuller property),
called the Upper Deeded, is separated from the Proctor parties’
property (the Proctor property) by Bureau of Land Management
(BLM) land. To the other side of the Upper Deeded is National
Forest Service (NFS) land, where the Fuller parties exercise federal
grazing permits. The Fuller parties also have rights in the Eagle
Ditch, which traverses the Proctor property and has a headgate on
the adjacent BLM land. This case concerns an easement across the
Proctor property, which the Fuller parties and their predecessors
have historically used to access the Upper Deeded and the NFS land
1 beyond, as well as to access the headgate on the Eagle Ditch and to
maintain the Eagle Ditch.
¶3 In 2002, the Proctor parties executed a settlement agreement
with the Fuller parties’ predecessor in interest, Connie Green,
relocating the easement to its current location.1 The settlement
agreement also provided that the Proctor parties would install gates
along the easement at locations they deemed appropriate.
¶4 The Proctor parties also executed an easement deed,
quitclaiming the access easement to Green and her successors and
assigns. The parties dispute whether the access easement is an
easement appurtenant (that runs with the land) or an easement in
gross (that does not).
¶5 In 2022, the Proctor parties prohibited the Fuller parties from
further use of the access easement. The Fuller parties brought a
claim for adverse possession, seeking a prescriptive easement based
1 The parties and the district court refer to the easement differently
— as the Green Easement, the Access Easement, and the Current Easement. Because the original location of the easement is not at issue in this appeal, we refer to the easement in its current location as “the access easement.” As discussed further below, we refer to the additional prescriptive easement located along the Eagle Ditch as “the ditch easement.”
2 on their historical use of the access easement for hunting,
recreational, and agricultural purposes, as well as the ability to
access the headgate of the Eagle Ditch and conduct maintenance
on the ditch.
¶6 The Proctor parties brought counterclaims against the Fuller
parties for trespass and to quiet title pursuant to C.R.C.P. 105.2
¶7 The district court held a bench trial and received written
closing arguments. In a written order, it concluded that the Fuller
parties established a prescriptive easement across the Proctor
property for all historical uses (the access easement), including
exercising grazing permits on adjacent NFS land, hunting, and
operating motorized vehicles and equipment. For purposes of this
prescriptive easement, the court relied on the Fuller parties’ and
their predecessors’ use of the access easement from 2002 to 2022,
not the easement deed. The court further concluded that the Fuller
parties proved a prescriptive easement along the Eagle Ditch for
access to the headgate and maintenance of the ditch (the ditch
easement). Based on its conclusion that five gates the Proctor
2 The Proctor parties also brought trespass claims against a third-
party defendant who is not a party to this appeal.
3 parties had installed along the ditch easement unreasonably
interfered with the Fuller parties’ rights, the court ordered the
Proctor parties to remove those gates.
¶8 The court denied the Proctor parties’ counterclaims.
¶9 The Proctor parties appeal, arguing that the district court
erred by imposing the ditch easement and ordering removal of the
five gates. They further challenge the court’s determinations that
the Fuller parties established the right to use the access easement
for grazing cattle on NFS land, hunting, and operating motorized
vehicles and equipment. We agree with the Proctor parties’ hunting
argument but disagree with their other arguments. We therefore
affirm in part, reverse in part, and remand for further proceedings.
II. Legal Principles and Standard of Review
¶ 10 A prescriptive easement is a right to use another’s land for a
specified purpose. LR Smith Invs., LLC v. Butler, 2014 COA 170,
¶ 14. It is established when the prescriptive use is (1) open or
notorious; (2) continued without effective interruption for at least
eighteen years; and (3) as relevant here, adverse. Lo Viento Blanco,
LLC v. Woodbridge Condo. Ass’n, 2021 CO 56, ¶ 20. A prescriptive
easement claimant that shows they have possessed the easement
4 for more than the statutory period is entitled to a presumption of
adverse use. Id. at ¶ 24. This presumption can be rebutted,
however, if the landowner shows that the claimant’s use was
permissive at any time during the statutory period. Id.
¶ 11 The scope or extent of an easement is determined based on the
use through which it was created. Wright v. Horse Creek Ranches,
697 P.2d 384, 388 (Colo.1985) (adopting Restatement (First) of
Prop. § 477 (A.L.I. 1944)). To ascertain whether a particular use is
permissible under a prescriptive easement, “a comparison must be
made between such use and the use by which the easement was
created with respect to (a) their physical character, (b) their
purpose, [and] (c) the relative burden” they cause on the property
burdened by the easement. Id. (quoting Restatement (First of Prop.
§ 478). While the beneficiary of a prescriptive easement is
permitted “to vary the use of the easement to a reasonable extent,”
this flexibility of use is limited by a concern for the degree to which
the variance increases the burden caused by the easement. Id. at
388-39; see also Lazy Dog Ranch v. Telluray Ranch Corp., 923 P.2d
313, 316 (Colo. App. 1996) (while an easement owner may do what
5 is reasonably necessary to permit full use of the easement, they
cannot expand its extent).
¶ 12 The district court’s finding of a prescriptive easement presents
a mixed question of fact and law. See Lo Viento, ¶ 16. While we
review the court’s legal conclusions de novo, we review its factual
findings for clear error. Id. at ¶¶ 16-17. We defer to the court’s
decisions on the credibility of witnesses; sufficiency, probative
effect, and weight of the evidence; and inferences and conclusions
drawn from conflicting evidence. Weisiger v. Harbour, 62 P.3d
1069, 1071 (Colo. App. 2002). When the court bases its factual
findings on competent evidence in the record, we will not disturb
them. Lo Viento, ¶ 24.
III. Ditch Easement
¶ 13 The Proctor parties first argue that the court erred by
imposing the ditch easement because the Fuller parties’ access to
the Eagle Ditch was not adverse. They point to Kathrine Proctor’s
testimony that she permitted third-party water users to access the
Eagle Ditch and that she understood that water users are legally
authorized to access ditches. They further argue that they could
not have sustained a trespass claim against the Fuller parties based
6 on use of the Eagle Ditch and the only reasonable explanation for
the Proctor parties’ installation of gates along the ditch was to
permit ditch users’ right of access. We are not persuaded.
¶ 14 As an initial matter, whether the Proctor parties would
succeed on a trespass claim based on the Fuller parties’ use of the
ditch easement is not dispositive of the issue of adverse use.
Instead, whether use is adverse is a factual question that requires
the court to evaluate witness credibility and weigh the evidence
before it.
¶ 15 The district court determined that the Proctor parties
presented no credible evidence to rebut the presumption of adverse
use. It found Kathrine Proctor’s testimony unreliable, noting that it
lacked detail, was made only in response to leading questions, and
was not substantiated by any other testimony. Regarding the gates,
the court noted that numerous witnesses testified they were used to
constrain cattle (not to provide or prohibit ditch access), and
because they were consistently left open or unlocked, they were
ineffective at serving this purpose. Because there is evidence in the
record to support the court’s determination that the Fuller parties
7 established adverse use of the ditch easement, we may not disturb
it.
¶ 16 Next, the Proctor parties argue that the district court had no
procedural avenue to impose the ditch easement or to order gate
removal because the Fuller parties stipulated to seeking only one
prescriptive easement. We disagree.
¶ 17 True, the parties stipulated that the Fuller parties were “only
seeking a single prescriptive easement in the area of the [access
easement], and in no other location on the Proctor Property.” But
as discussed, the Fuller parties’ claim to the access easement was
based in part on their need to access the Eagle Ditch headgate and
conduct maintenance on the Eagle Ditch. The primary manager of
L and M Fuller, LLC’s operations testified that the five gates along
the Eagle Ditch made it significantly more difficult to maintain the
ditch and that the Fuller parties specifically asked the court to
order their removal. The Proctor parties also brought a
counterclaim to quiet title under C.R.C.P. 105, requesting that the
court order the Fuller parties “to cease damaging gates and fences
protecting the Proctor Property.”
8 ¶ 18 Thus, the issue of the Fuller parties’ right to move along the
Eagle Ditch, and whether the gates interfered with that right, was
plainly before the court. In fact, the Proctor parties’ counterclaim to
quiet title required the court “to provide a complete adjudication of
the rights of all parties” and to grant “full and adequate relief so as
to completely determine the controversy.” Argus Real Est., Inc. v. E-
470 Pub. Highway Auth., 109 P.3d 604, 612 (first quoting Hopkins
v. Bd. of Cnty. Comm’rs, 564 P.2d 415, 420 (Colo. 1977); and then
quoting C.R.C.P. 105(a)). This is the “manifest intent” of a quiet
title action under C.R.C.P. 105. Id. (quoting Hopkins, 564 P.2d at
420)); see also Hinojos v. Lohmann, 182 P.3d 692, 702 (Colo. App.
2008) (the court “should resolve all issues apparent from the
evidence” (citing Keith v. Kinney, 961 P.2d 516, 519 (Colo. App.
1997))).
¶ 19 The Proctor parties do not otherwise challenge the court’s
finding of a prescriptive easement along the Eagle Ditch or its
determination that the gates constituted an unreasonable
9 interference with the ditch easement. Accordingly, they are not
entitled to relief.3
IV. Access Easement
A. The Fuller Parties’ Exercise of NFS Grazing Permits
¶ 20 The Proctor parties next argue the district court erred by
determining that the Fuller parties could use the access easement
to graze cattle on NFS land located beyond the Upper Deeded. We
disagree.
¶ 21 The district court determined that the Fuller parties’ open,
continuous, and adverse use of the access easement included their
historical use to exercise grazing permits on adjacent government
property. The court further concluded that such use did not create
an additional burden on the access easement, noting that the Fuller
parties were not offering third parties the right to use it.
¶ 22 The Proctor parties do not challenge the court’s factual
determination that the Fuller parties and their predecessors
3 Because it is raised for the first time in their reply brief, we do not
consider the Proctor parties’ argument that the district court erred because the Fuller parties failed to name the Eagle Ditch Company as an indispensable party in their complaint. See S. Conejos Sch. Dist. RE-10 v. Wold Architects Inc., 2023 COA 85, ¶ 34 n.4.
10 historically used the access easement to exercise federal grazing
permits. Instead, they assert that the court erred as a matter of law
because it effectively created a separate property interest in the
Fuller parties’ grazing permits and established a prescriptive
easement to benefit the government. They further argue the court’s
ruling will allow the Fuller parties to overburden the access
easement by bringing more cattle over it, for longer stretches of
time, than they would have been entitled to otherwise.
¶ 23 To support their argument, the Proctor parties point to the
well-established principle that an easement holder may not use the
easement to benefit property other than the dominant estate. See
Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo.
1998) (the property that benefits from an easement is generally
called the dominant estate). “This rule reflects the likely intent of
the parties by setting an outer limit on the potential increase in use
of the easement brought about by normal development of the
dominant estate.” Id. at 1238 (quoting Restatement (Third) of Prop.:
Servitudes § 4.11 cmt. b (A.L.I., Tentative Draft No. 4, 1994)); see
also Riddell v. Ewell, 929 P.2d 30, 32 (Colo. App. 1996) (citing the
same “general rule”). The Proctor parties further rely on out-of-
11 state authority holding that the “expanded use” of an easement to
benefit another property constitutes an impermissible
overburdening of the easement as a matter of law. Il Giardino, LLC
v. Belle Haven Land Co., 757 A.2d 1103, 1113 (Conn. 2000).
¶ 24 But, as discussed, the Fuller parties’ use of the easement to
graze cattle on NFS land is not an expanded use. Nor does the use
benefit the NFS or any other owners of adjacent property. Instead,
the district court determined that the ability to move cattle into
grazing areas adjacent to the Upper Deeded was among the
historical benefits to the Fuller property afforded by the access
easement.4 The record again supports the court’s determination
that there is no increase or added burden to the Proctor property
resulting from the Fuller parties’ continuation of that historical use.
We therefore defer to it.5
4 For this reason, the Proctor parties’ concern that a subsequent
purchaser of the Fuller parties’ federal grazing permits, but not their property, would be entitled to use the access easement is misplaced. 5 The Proctor parties also suggest that the district court
overreached because the United States government was an indispensable party not included in the action. Again, because this argument was raised for the first time in their reply brief, we do not address it. See S. Conejos Sch. Dist. RE-10, ¶ 34 n.4.
12 B. Continuity of Hunting Use
¶ 25 The Proctor parties also assert that the district court failed to
properly determine whether the Fuller parties’ use of the access
easement for hunting was continuous and adverse. On this point,
we agree.
1. Additional Facts
¶ 26 When the Proctor parties quitclaimed the access easement to
Green, these parties agreed that it could “be used only for cattle
ranching and occasional recreational use,” not including “use by
hunters or for hunting related purposes.”
¶ 27 The Proctor parties submitted deposition testimony from
Steven Coury, one of the Fuller parties’ predecessors, into evidence.
Coury owned the Fuller property from 2006 to 2017. In his
deposition, Coury stated that he was “a stickler” for the easement
deed restrictions and that, while he hunted on the Upper Deeded,
he used another means of access (called Pipeline Road) to access
the Upper Deeded for that purpose. Coury specifically stated that
he did not use the access easement to access the Upper Deeded for
hunting purposes, and he prohibited his ranch hand, Fred
13 Ferganchick, from the same, communicating that all hunters had to
use Pipeline Road.
¶ 28 At trial, Ferganchick testified that he hunted on the Upper
Deeded and leased it out to commercial hunters. He testified that
he used Pipeline Road to get to the Upper Deeded for hunting
purposes but that it’s “almost impossible to take that in wintertime
and go anywhere on that road.” He also indicated that he did not
fully understand the easement deed restrictions.
¶ 29 In written closing arguments, the Proctor parties argued that
the Fuller parties could not establish a prescriptive easement in the
access easement for hunting because such use would be in direct
violation of the easement deed. Based on the easement deed, they
argued that any use of the access easement was “subordinated” or
inferior to the Proctor parties’ hunting restrictions. They further
argued that any use of the access easement for hunting “by rogue
ranch hands,” made without the easement holder’s approval, could
not establish continuous use.
¶ 30 The district court rejected the Proctor parties’ argument
because it was not supported by authority and because “[t]o require
that any evidence of adverse use must only be through the actual
14 owner of the property [wa]s not practical nor grounded in reality.”
The court noted that the Fuller parties’ predecessors were largely
“absentee owners,” and that their ranch managers and ranch hands
offered credible and compelling testimony regarding how the access
easement was used. It also rejected any suggestion by the Proctor
parties that these individuals’ testimony should be discredited
because they were “merely ranch hands.”
2. Discussion
¶ 31 At the outset, we reject the Proctor parties’ argument that the
principle of subordination defeats the Fuller parties’ prescriptive
easement claim. “At its core, subordination ‘is essentially a matter
of status between parties’ and ‘establishes priorities between those
parties by some means other than the automatic or statutory
scheme.’” City of Englewood v. Burlington Ditch, Reservoir & Land
Co., 235 P.3d 1061, 1068 (Colo. 2010) (citation omitted). The
Proctor parties base their subordination argument on the hunting
restrictions in the easement deed. But the district court concluded
the easement deed conveyed an easement in gross and therefore did
not run with the property. See Lewitz v. Porath Fam. Tr., 36 P.3d
120, 122 (Colo. App. 2001). The court based its finding of a
15 prescriptive easement on the uses that occurred after 2002,
unencumbered by the easement deed. The Proctor parties do not
develop an argument that the court erred in this regard, so we do
not consider it further. See Woodbridge Condo. Ass’n v. Lo Viento
Blanco, LLC, 2020 COA 34, ¶ 41 n.12 (we do not consider
undeveloped arguments), aff’d, 2021 CO 56.
¶ 32 As they did before the district court, the Proctor parties also
argue that the Fuller parties should not have been permitted to
count Ferganchick’s or other agents’ use of the access easement for
hunting because those uses were performed without permission
from the easement holder with whom the Fuller parties share
privity. The Proctor parties assert that the court misapprehended
their argument on this issue, believing it to be about how much
weight to give a ranch hand’s testimony as opposed to whether, as a
legal matter, the Fuller parties were entitled to count activities
performed by an unauthorized agent as part of historical use. We
agree that the district court did not address the argument before it.
¶ 33 The district court properly concluded that an easement holder
may rely on their predecessors’ agents to establish prior use. See
Restatement (Third) of Prop: Servitudes § 2.16 cmt. e (A.L.I. 2000)
16 (“Prescriptive uses need not be made personally by the owner of the
claimed prescriptive servitude, but may be made by tenants,
customers, guests, and visitors of the claimant.”). But the court did
not resolve the legal question of whether such reliance is
appropriate if the agents were acting outside the scope of their
employment or without the consent of the prior easement holders.
Reviewing this question de novo, we agree with the Proctor parties
that adverse use based on an agent’s use of an easement must be
within the terms of his agency with the easement holder. See id.
(“[U]se by strangers and members of the general public does not
qualify as prescriptive use to establish servitude rights in an
individual.”); see also Ammer v. Ariz. Water Co., 818 P.2d 190, 195
(Ariz. Ct. App. 1991) (to inure to the property owner’s benefit, a
tenant’s adverse use must be “within the terms of his tenancy”).
¶ 34 Importantly, however, the court also left unanswered the
factual questions of whether Ferganchick or other agents used the
access easement to hunt on the Upper Deeded, and whether they
did so with permission from Coury or any other easement holders.
Indeed, the court did not address Coury’s deposition testimony at
all. While Coury stated that he allowed Ferganchick to conduct
17 commercial hunting on the Upper Deeded, he was also unequivocal
that hunters accessed the Upper Deeded “[t]hrough the other way”
and that Ferganchick was not authorized to use the access
easement for hunting purposes. Whether the Fuller parties
established continuous adverse use of the access easement for
hunting purposes turns on the factual question of whether privity
existed between the Fuller parties and their predecessors’ agents.
We cannot resolve that factual question in the first instance. See
Kruse v. Town of Castle Rock, 192 P.3d 591, 601 (Colo. App. 2008)
(appellate courts are not the fact finder).
¶ 35 Because the district court did not address the legal question
before it, we conclude its finding of continuous adverse use for
hunting purposes was improper. We therefore reverse this portion
of the court’s judgment and remand for further factfinding. On
remand, the court should address the effect, if any, of Coury’s
deposition testimony and determine whether Ferganchick’s or other
agents’ use of the access easement for hunting purposes was
authorized by the easement holder.
18 C. Use of Motorized Vehicles and Equipment
¶ 36 Finally, the Proctor parties argue that the district court erred
by including the use of motorized vehicles other than all-terrain
vehicles (ATVs) and heavy motorized equipment in the access
easement. We conclude reversal is not warranted.
¶ 37 The evidence at trial showed that the Fuller parties’
predecessor from 2002 to 2006, Mike Carver, crossed the access
easement only on foot, on horseback, and by ATV. By contrast,
subsequent property owners and their agents testified that they
brought trucks, trailers, bulldozers, backhoes, and a road grader
across the access easement. In their written closing arguments, the
parties disputed whether the Fuller parties’ historical use of the
access easement included the use of non-ATV vehicles and
motorized equipment. Recognizing Carver’s testimony, the district
court concluded it did.
¶ 38 The Proctor parties argue the court erred because it failed to
place a restriction on the Fuller parties’ use of the access easement
despite finding that Carver’s use was limited to ATVs. They argue
the court was required to compare the character, purpose, and
burden of the different motorized uses and balance them against
19 the access easement’s original purpose. The Fuller parties, in turn,
argue that they established a general access easement serving their
property, and this necessarily includes access by different methods
as may be appropriate for different uses. The Fuller parties further
assert that the difference between ATVs and other motorized
vehicles and equipment is one of degree, not kind, and therefore all
these uses fall within the prescriptive easement.
¶ 39 Initially, we agree with the Fuller parties that the difference
between using ATVs to cross the access easement and using trucks,
backhoes, and other equipment to do the same is a difference in
degree, not kind. See Clinger v. Hartshorn, 89 P.3d 462, 467 (Colo.
App. 2003) (differences in degree include an increase in the number
of people, volume of traffic, or number of electrical conductors using
an easement). Even so, the question remains whether this change
unreasonably burdens the access easement. See Cielo Vista Ranch
I, LLC v. Alire, 2018 COA 160, ¶¶ 124-125 (changes in degree favor
a finding that the current use is within the easement’s scope, but
an increased burden cannot be unreasonable). In this regard, we
disagree with the Fuller parties’ argument that access is access,
whatever the means. Cf. Clinger, 89 P.3d at 467 (considering
20 whether a change in the degree of use was so substantial as to
require limiting the easement’s extent).
¶ 40 To be sure, the district court did not make explicit findings on
the physical character, purpose, or relative burden of ATVs versus
non-ATVs, nor did it expressly state a legal conclusion that the
change that occurred after 2006 was reasonable. Nevertheless, the
court determined that the Fuller parties established historical use
of the access easement to conduct agricultural and ranching
activities on the Upper Deeded and to access and maintain the
Eagle Ditch. And it included motor vehicles in the access
easement’s scope, notwithstanding Carver’s testimony. On this
basis, we conclude the district court made a determination, albeit
implicit, that the change in use from ATVs to other motorized
vehicles and equipment was reasonable and not unduly
burdensome. See Foster v. Phillips, 6 P.3d 791, 796 (Colo. App.
1999) (a court’s findings may be implicit, so long as they are
sufficient for appellate review). On appeal, the Proctor parties argue
that the court did not apply the correct legal standard. But they
make no meaningful attempt to argue that the use of non-ATV
motorized vehicles and equipment is outside the access easement’s
21 scope. They point to Carver’s testimony that he believed
introducing non-ATV vehicles and other motorized equipment would
“tear up” the access easement. But Carver’s personal belief does
not establish that the subsequent change in use was in fact
unreasonable. The Proctor parties also argue that the Fuller
parties’ use of the access easement creates a “heightened burden on
the soft, dirt trial [that] threatens [the Proctor parties’] ability to also
access along this travelled way and increases wear and tear.” But
they do not explain how their use of the access easement is
impeded or why additional wear and tear constitutes an
unreasonable interference.
¶ 41 An easement holder may make any use of an easement that is
reasonably necessary to permit its full use without unreasonably
interfering with the property owner’s enjoyment of their property.
See Amada Fam. Ltd. P’ship v. Pomeroy, 2021 COA 73, ¶ 67.
Because the Proctor parties have not shown that the Fuller parties’
use of the access easement constitutes an unreasonable
interference with their property rights, we conclude they are not
entitled to relief.
22 V. Attorney Fees
¶ 42 The successful portion of the Proctor parties’ appeal cannot be
characterized as frivolous, and their remaining arguments present a
coherent assertion of error, even if they are unsuccessful. We
therefore decline the Fuller parties’ request for an award of attorney
fees.
VI. Disposition
¶ 43 The judgment is affirmed in part and reversed in part, and the
case is remanded for further proceedings consistent with this
opinion.
JUDGE JOHNSON and JUDGE GOMEZ concur.