Leben v. Lowe

• Court: Colorado Court of Appeals
• Decided: May 21, 2026
• Docket: 25CA0841
• Status: Unpublished

Opinion

25CA0841 Leben v Lowe 05-21-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA0841 Montrose County District Court No. 23CV30010 Honorable D. Cory Jackson, Judge

Bruce Leben and Theresa Leben, individually and as trustees of the Bruce L. Leben and Theresa A. Leben Trust,

Plaintiffs-Appellants,

v.

Jerry Lowe and Andrea Lowe,

Defendants-Appellees.

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

Division IV Opinion by JUDGE SCHUTZ Freyre and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 21, 2026

Brian Kidnay, P.C., Brian Kidnay, Montrose, Colorado for Plaintiffs-Appellants

Dufford Waldeck, William S. DeFord, Grand Junction, Colorado, for Defendants-Appellees ¶1 This appeal arises out of the latest lawsuit involving plaintiffs,

Bruce and Theresa A. Leben (the Lebens), and their neighbors,

defendants, Jerry and Andrea Lowe (the Lowes). The Lebens made

several claims against the Lowes — including trespass, negligence

per se, a private right of action for leaving a gate open, and

nuisance — and requested a permanent injunction.

¶2 The court held a bench trial, after which it rendered its

findings of fact and conclusions of law and entered judgment

primarily in favor of the Lowes. The Lebens appeal several portions

of the trial court’s judgment. We affirm the judgment in part,

reverse the judgment in part, and remand to the trial court for

further proceedings consistent with this opinion.

I. Background

¶3 The properties in question have a complex and entangled

history. Initially, the two ranches were part of a single property

owned by Kinikin Partnership (Kinikin). Roger Prock, the owner of

Kinikin, interacted extensively with the parties during and after

their purchases of the properties, and he still resides nearby. In

2001, Ivan and Sheila Kelso (the Kelsos) bought a little less than

half of the property from Kinikin. Kinikin sold the remaining parcel

1 of land to the Lebens in 2006 (the Leben ranch). The Kelsos sold

their parcel to the Lowes in 2016 (the Lowe ranch). The ranches are

adjacent to each other, and Q72 Road — a public road — runs

through and next to both properties at different points.

¶4 This dispute primarily relates to two easements. The first is

an access easement from Q72 Road to the Lowe ranch and the

Leben ranch. Prock initially created the access easement in 2001

when he sold the Lowe ranch parcel to the Kelsos so that he could

still access the Leben ranch parcel from Q72 Road. The access

easement begins at Q72 Road and runs largely north and then

diagonally northeast.

¶5 Where the access easement intersects with the Leben ranch, it

is extended by a second easement known as the Dry Cedar Creek

easement. The Dry Cedar Creek easement acts, in part, as a

boundary between the two properties. Both easements are thirty

feet wide. Fifteen feet of the Dry Cedar Creek easement’s width lies

on each ranch. The Lebens constructed a fence in the vicinity of

the southern boundary of the Dry Cedar Creek easement.

¶6 The Kelsos used the Dry Cedar Creek easement infrequently

when they owned the Lowe ranch parcel. The Dry Cedar Creek

2 easement was largely overgrown and difficult to traverse, especially

during the winter months. The trial court determined that the Dry

Cedar Creek easement was “not intended for any specific, limited

purpose.”

¶7 Prior to selling the Leben ranch in 2006, Prock built a large

archway across the access easement just east of where it meets the

Dry Cedar Creek easement to make the property more attractive to

prospective buyers. In 2009, the Lebens rebuilt the archway. In

2011, the Kelsos sued the Lebens, alleging the new archway

trespassed on their property. The Kelsos also alleged that the

Lebens had installed a large sign with their surname in the

archway, which crossed the access easement on the Lowe ranch.

The Kelsos and the Lebens settled their disputes, agreeing to

informal terms in June of 2011 (June agreement) and formalizing

the agreement the following month (July agreement). One of the

terms of the July agreement required “[a]dherence by all parties to

the terms and conditions of the [June agreement].”

¶8 As part of the July agreement, the parties agreed that the

archway with its gateposts could remain on the Lowe ranch.

Importantly, no gate had ever been placed across the access

3 easement at the archway, and the Lebens did not negotiate for a

gate as part of either the June agreement or the July agreement.

¶9 The June agreement also required the Lebens to execute a bill

of sale to the Kelsos for a water pipe and a divider box to which the

pipe connected. The Kelsos paid the Lebens $4,000, and the June

agreement reflected that “[t]he divide[r] box and ditch which feeds it

will belong equally to both parties and be jointly maintained.”

¶ 10 In a prior suit in 2017, the Lowes sued the Lebens, asserting

claims for declaratory judgment, trespass, and invasion of privacy.

As part of the 2017 action, the Lowes sought the ability to build a

gate across the access easement near Q72 Road to exclude

trespassers and prevent livestock from wandering onto the Lowe

ranch. Following a bench trial in September 2018, the court

entered findings of fact and conclusions of law (2019 order), finding

that it could not “conclude that a gate on the [access] easement

[was] permitted” but that the Lowes could install a cattle guard at

the beginning of the access easement instead. The trial court

concluded that any cattle guard would only be permitted “so long as

such cattle guard d[id] not in any way interfere with the use of the

easement by the Lebens.” In early 2023, the Lowes installed a

4 cattle guard that traverses the full thirty-foot width of the access

easement where the easement begins at Q72 Road.

¶ 11 Shortly before the Lowes installed the cattle guard, the Lebens

installed a gate across the access easement at the archway on the

Lowe ranch. The Lebens placed a lock on the gate and provided the

Lowes with the combination. Simultaneously, the Lebens dug a bar

ditch on the Lowe ranch to help the access easement drain

adequately to protect both the easement and the archway. The

Lebens lined the bar ditch with riprap (a general term for fractured

rock and concrete used to stabilize soil) to ensure the ditch drained

sufficiently.

¶ 12 Given these disputes, the Lebens brought the current suit

against the Lowes in late January 2023. The court set the matter

for a hearing on the Lebens’ request for a preliminary injunction.

At the completion of the hearing, the court declined to enter a

preliminary injunction.

¶ 13 Prior to trial, the Lowes raised a counterclaim for trespass

against the Lebens based on the location of the fence near the Dry

Cedar Creek easement. The court set a three-day bench trial,

beginning in September 2024.

5 ¶ 14 During the litigation, to circumvent the Lebens’ locked gate,

the Lowes built a bypass from the access easement starting about

twenty-five feet west of the gate, across the Lowe Ranch, and back

to the Dry Cedar Creek easement about twenty-five feet east of the

gate (the bypass). In the process of building the bypass, the Lowes

removed a portion of the rip rap from the bar ditch and replaced it

with a culvert. At some point, the Lowes also locked half of the

divider box. The Lebens amended their complaint to address the

bypass and changes to the bar ditch.

¶ 15 Following a bench trial, the trial court issued its findings of

fact and conclusions of law. The court determined that the cattle

guard that the Lowes installed was reasonably designed and

complied with the 2019 order. The trial court also determined that

the parties jointly owned the divider box, that the Lebens’ new gate

at the archway was an impermissible burden on the Dry Cedar

Creek easement, and that the bypass existed solely on the Lowe

ranch and therefore did not interfere with the Leben ranch or the

Dry Cedar Creek easement. Finally, the trial court determined that

the Lebens’ fence trespassed on the Lowe ranch and issued an

injunction requiring the Lebens to move the fence.

6 ¶ 16 The Lebens now appeal.

II. Standards of Review and Applicable Law

¶ 17 We review the trial court’s factual findings for clear error and

its legal conclusions de novo. C & C Invs., LP v. Hummel, 2022 COA

42, ¶ 35. Clear error exists “only if there is nothing in the record to

support” the finding. Loveland Essential Grp., LLC v. Grommon

Farms, Inc., 251 P.3d 1109, 1117 (Colo. App. 2010).

¶ 18 We begin by addressing the interests created by an easement,

and the burdens and benefits associated with those interests.

¶ 19 An easement is defined as

[a]n interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road). The land benefiting from an easement is called the dominant estate; the land burdened by an easement is called the servient estate. Unlike a lease or license, an easement may last forever, but it does not give the holder the right to possess, take from, improve, or sell the land.

Black’s Law Dictionary 642-43 (12th ed. 2024).

¶ 20 The Leben ranch is the dominant estate of the access

easement because the easement runs across part of the Lowe

7 ranch. The access easement allows the Lebens to move from their

ranch through the Lowe ranch to Q72 Road.

¶ 21 The Dry Cedar Creek easement operates slightly differently.

Recall that the easement is thirty feet wide with fifteen feet of that

width on each property. This means that the Lebens have the

dominant estate for the fifteen feet of the easement that is on the

Lowe ranch, and the Lowes have the dominant estate for the fifteen

feet that is on the Leben ranch. Therefore, the parties have equal

rights to use the Dry Cedar Creek easement, but neither party has

the right to “possess, take from, improve, or sell the land.” Id.

¶ 22 “The owner 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 v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo. 1998).

An easement, however, does not carry any title to the land or

“dispossess the landowner.” Id. “[When] an easement is non-

exclusive in nature, both the holder of the easement and the owner

of the land burdened by the easement have rights to use the

property.” Id. at 1238. Unless the easement agreement states

8 otherwise, “the owner of the servient estate may make any use of

the burdened property that does not unreasonably interfere with

the enjoyment of the easement by its owner for its intended

purpose.” Id.

III. Analysis

¶ 23 The Lebens appeal several aspects of the trial court’s

judgment. The Lebens assert that the trial court erred by (1)

concluding that the cattle guard reasonably complied with the

terms of the 2019 order; (2) concluding that neither the easement

nor the June agreement nor the July agreement permitted them to

install a gate across the access easement at the archway; (3) finding

that the bypass the Lowes constructed was neither a trespass nor

an impermissible alteration of the access easement or the Dry

Cedar Creek easement; (4) finding that the Lowes and the Lebens

jointly and equally own the divider box and, therefore, that the

Lowes were permitted to lock their half of the box; and (5) ordering

them to move a portion of their fence that trespassed on the Lowe

ranch without adequately identifying the area of encroachment.

¶ 24 We address each contention in turn.

9 A. Cattle Guard

1. Standard of Review

¶ 25 “First, whether gates or cattle guards are an unreasonable

interference to an easement holder is a question of fact. Thus, we

shall not disturb the findings of the trial court if supported by the

evidence.” Lazy Dog Ranch v. Telluray Ranch Corp., 923 P.2d 313,

317 (Colo. App. 1996), rev’d on other grounds, 965 P.2d 1229 (Colo.

1998). Additionally, “when called on to interpret or construe a trial

court’s order, we do so de novo.” Andrews v. Miller, 2019 COA 185,

¶ 8.

2. Additional Facts

¶ 26 Recall that the 2019 order stated that the Lowes could install

a cattle guard at the beginning of the access easement provided the

“cattle guard d[id] not in any way interfere with the use of the

easement by the Lebens.”

¶ 27 After the 2019 order, the parties struggled to agree about the

size and placement of the cattle guard. The Lowes offered to build,

further up the access easement, a sixteen-foot cattle guard with a

corresponding fourteen-foot side gate to allow livestock in and out.

The Lebens informed the Lowes that any cattle guard that extended

10 less than “the full 30 feet in width” of the easement was not

acceptable. And at trial, Bruce Leben articulated that a cattle

guard that was less than the full thirty-foot width would make it

difficult for semitrucks to access the Leben ranch through the

access easement.

¶ 28 The Lebens also insisted that the 2019 order was clear: The

cattle guard could only be installed “at the beginning of the [access

easement].” The Lebens’ insistence on the placement of the cattle

guard prevented the Lowes from installing the cattle guard at their

proposed alternative location 300 to 400 feet from where the access

easement began at Q72 Road. The Lowes had proposed the second

location because “people turning in off [Q72 Road] could clear [Q72

Road] before crossing [the cattle guard].” This meant that a large

vehicle only needed to continue moving forward instead of turning

while traversing the cattle guard, as would be required if the cattle

guard was located at the start of the access easement.

¶ 29 Applying the terms of the 2019 order, the trial court found, in

relevant part, as follows: “With respect to any argument that the

cattleguard is an unreasonable interference with the Access

Easement, that claim is not persuasive because the nature of any

11 interference was inherent and expressly addressed in the [2019

order], and that Order has preclusive effect here.” Thus, the court

concluded that the Lebens had failed to prove that the cattle

guard’s location, width, and round pipes violated the 2019 order or

unreasonably interfered with the Lebens easement rights. As the

trial court found, “[T]he Lebens repeatedly demanded the Lowes

build a cattleguard to span the full width of the easement . . . [and]

specifically demanded . . . a thirty-foot wide cattleguard, which

leaves no space for a side-gate . . . .” Simply put, the Lowes built

and installed the cattle guard as the Lebens demanded. Relatedly,

the court concluded that the use of round pipes to form the cattle

guard did not result in an unreasonable interference with the

Lebens’ access rights.

3. Analysis

¶ 30 On appeal, the Lebens contend that the trial court made three

errors by finding that the cattle guard complied with the 2019

order.

¶ 31 First, they argue that the trial court erroneously found that

“the nature of any interference was inherent and expressly

addressed in the [2019 order].” The Lebens contend that the cattle

12 guard impermissibly limits the utility of the easement, thereby

frustrating its purpose. See Roaring Fork Club, L.P. v. St. Jude’s

Co., 36 P.3d 1229, 1236 (Colo. 2001). Next, the Lebens argue that

the trial court erred by concluding that the 2019 order had

“preclusive effect” in deciding whether the cattle guard’s size and

placement was appropriate. Finally, they argue that the 2019 order

created an absurd result. These arguments are interrelated, so we

address them together.

¶ 32 In Roaring Fork, the supreme court relied on the Restatement

(Third) of Property: Servitudes to define the interplay between the

dominant and servient estates in the easement context:

Unless expressly denied by the terms of an easement, . . . the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner’s expense, to permit normal use or development of the servient estate, but only if the changes do not

a) significantly lessen the utility of the easement,

b) increase the burdens on the owner of the easement in its use and enjoyment, or

c) frustrate the purpose for which the easement was created.

13 36 P.3d at 1236 (quoting Restatement (Third) of Prop.: Servitudes

§ 4.8(3) (A.L.I. 2000)).

¶ 33 The Lebens argue that the cattle guard significantly lessened

the utility of the easement, thus violating the first prong of the

Restatement’s standard. The Lebens’ objection to the cattle guard

at trial had two components: its width and the type of pipes used to

construct the cattle guard.

¶ 34 The record supports the trial court’s finding that the Lebens

insisted on the cattle guard occupying the full thirty-foot width of

the easement, thus precluding a side gate from being installed

within the easement. Moreover, Jerry Lowe testified that the

Lebens rejected the Lowes’ offer to install the cattle guard roughly

300 feet from the start of the easement, where a narrower cattle

guard with a side gate would not impede wide turns.

¶ 35 The Lebens also complain that the cattle guard prevents

semitrucks from accessing the Leben ranch to unload livestock.

Apparently, without the cattle guard across the access easement,

the Lebens could unload sheep from a semitrailer before the semi

turned onto the access easement. From there, the sheep could

walk through and up the easement to access the Leben ranch. But

14 that is no longer possible because the sheep cannot cross the cattle

guard, and there is insufficient space for a semi to turn around

once it crosses the cattle guard.

¶ 36 This asserted problem results from the Lebens insistence that

the cattle guard be located at the beginning of the access easement,

not from any unreasonable action by the Lowes. Moreover, the

Lebens acknowledge that livestock could still be transported by

using a pickup truck and trailer. Thus, the record supports the

trial court’s conclusion that that the Lowes did not unreasonably

interfere with the Lebens use of the access easement to transport

livestock.

¶ 37 The trial court also heard testimony from Mark Covington, an

experienced rancher who described other cattle guards installed in

the area. Covington testified that cattle guards typically include a

side gate, usually between twelve and sixteen feet wide, plus thirty

to forty feet of fencing to herd livestock toward and through the

gate. Covington also stated that twelve feet was the “minimum”

width for a side gate. Following Covington’s testimony, the court

personally inspected the properties, including the thirty-foot cattle

guard.

15 ¶ 38 It is undisputed that the access easement is thirty feet wide

and that the cattle guard extends the full thirty-foot width of the

easement, as the Lebens demanded. Thus, no side gate could be

installed without encroaching onto the Lowe ranch. In other words,

the Lebens’ demands were impossible to satisfy within the bounds

of the easement.1 The Lebens cannot now protest the consequence

of the thirty-foot cattle guard that they demanded. See People in

Interest of S.N-V., 300 P.3d 911, 913 (Colo. App. 2011) (“Estoppel

doctrines generally bar a party from asserting a claim or right that

contradicts what that party has said or done before . . . .”).

¶ 39 Furthermore, we perceive no error in the trial court’s

determination that the impact of the thirty-foot cattle guard did not

rise to the level of an unreasonable interference with the Lebens’

use of the access easement for pedestrian traffic. The Lebens

contended at trial that the cattle guard now prevents them from

1 We reject the argument made by the Lebens, for the first time at

oral argument, that the Lowes should be required to convey to them a license to traverse the Lowe ranch outside of the access easement. The owner of a servient estate has no obligation to transfer an interest in the servient estate to accommodate a dominant estate owner’s insistence on demands that cannot be accommodated within the easement.

16 walking down to retrieve their mail with their dogs and otherwise

makes their property difficult to access for anyone not in a vehicle.

However, Covington testified that small pets are able to go under

the fences near a cattle guard, allowing them to avoid crossing the

cattle guard altogether. He also testified that round cattle guards

were common and worked adequately in light-traffic areas, with

vehicles travelling under forty-five miles per hour, which was the

case for the placement of the cattle guard on the access easement.

Finally, Covington acknowledged that flat cattle guards were more

common and that round cattle guards were harder for humans to

walk across, although not impossible. The trial court found this

testimony persuasive and more objective and credible than the

Lebens’ testimony.

¶ 40 Moreover, Jerry Lowe testified that he had modified the cattle

guard to include a “12-inch flat plate across [the cattle guard] to

give a surface to walk across.” Jerry Lowe also stated that people

were able to navigate this twelve-inch strip to walk across the cattle

guard. The testimony of Covington and Jerry Lowe provides record

support for the trial court’s determination that cattle guard did not

unreasonably interfere with pedestrian traffic.

17 ¶ 41 Finally, we reject the Lebens’ argument that the limited

burdens the cattle guard placed on their use of the access easement

created an absurd result or violated the requirement in the 2019

order stating that any cattle guard could not “in any way interfere

with the use of the [access] easement by the Lebens.” As the trial

court noted, the 2019 order expressly contemplated the installation

of a cattle guard at the beginning of the access easement, and the

incidental interference complained of by the Lebens is inherent in

the construction of a cattle guard across the entirety of the

easement, as they demanded. Because the 2019 order

contemplated the installation of a cattle guard, we interpret it to

mean that the cattle guard could not unreasonably interfere with

the Lebens’ use of the access easement. See Lazy Dog, 965 P.2d at

1238.

¶ 42 In light of the evidence, we cannot conclude that the trial

court’s application of the 2019 order leads to an absurd result or

that its finding that the cattle guard does not unreasonably

interfere with the Lebens rights under the access easement is

unsupported by the record.

18 B. Archway Gate

¶ 43 We now turn to the gate the Lebens installed across the

easement at the archway. Recall that Prock had initially built an

archway on the Lowe ranch for the benefit of the Leben ranch. The

Lebens eventually rebuilt that archway, and the archway was part

of the 2011 lawsuit brought by the Kelsos against the Lebens. In

the final settlement of that case, the Lebens negotiated for the

archway to remain on the Lowe ranch. The settlement agreement

did not permit the Lebens to install a gate at the archway.

¶ 44 Nonetheless, the Lebens note that the July agreement

included “[a]n easement for the maintenance and repair of an

existing or replacement gatepost and archway,” and therefore, they

argue, the easement implicitly recognized that they were entitled to

construct a gate across the easement from one gatepost to the

other. We disagree.

¶ 45 “The interpretation of a settlement agreement, like any

contract, is a question of law that we review de novo.” Bumbal v.

Smith, 165 P.3d 844, 845 (Colo. App. 2007). Likewise, we interpret

the language of an easement de novo. See Gold Hill Dev. Co. v. TSG

19 Ski & Golf, LLC, 2015 COA 177, ¶ 43. As previously noted, we

review a trial court’s factual findings for clear error; a finding is

clearly erroneous only if there is no record support for it. Loveland,

251 P.3d at 1117.

2. Analysis

¶ 46 In the trial court, the Lebens acknowledged that the language

of the July agreement and resulting easement deed are clear —

granting them an “easement for the maintenance and repair of an

existing or replacement gatepost and archway which spans the

[Lebens’] driveway as it crosses [the Lowe ranch].” The Lebens

appear to argue that because they possess the dominant estate they

are entitled to a “superior right” that encompasses the right to place

a gate between the gateposts. This is not the case. As the

dominant estate, the Lebens are entitled to use the access easement

for its stated purpose, and the Lowes are unable to unreasonably

hinder that use. Neither the settlement agreement nor the

easement contemplates the existence of a gate at the archway.

Indeed, as the trial court found, the Lebens acknowledged “that the

express language of the deed allows only for a gatepost.”

20 ¶ 47 Moreover, “[l]ocked gates are usually considered an

unreasonable burden, even if the easement holder is provided with

keys.” Lazy Dog, 923 P.2d at 317. As previously noted, the Dry

Cedar Creek easement is not exclusively for the Lebens’ benefit; the

Lowes retain the right to use the easement as well. And the trial

court found the Lebens’ testimony that the presence of a gate did

not impose an unreasonable burden on the Lowes’ rights to ingress

and egress was not credible, particularly in view of the fact that the

Lebens had argued in the 2017 litigation that the Lowes should not

be allowed to place an automatic gate across the access easement

where it meets Q72 Road.

¶ 48 The Lebens also argue that the trial court incorrectly treated

the Leben ranch as the servient property and therefore applied the

incorrect standard when evaluating the Lebens’ ability to install a

locked gate across the archway. But the court’s rejection of the

right to construct a gate was not premised on whether the Lebens

or the Lowes were the holders of the dominant estate with respect

to the Dry Cedar Creek easement. Rather, its ruling was based on

the fact that the construction of a gate was not authorized by the

settlement agreement and resulting deed and that such a gate

21 would unreasonably burden the Lowes’ rights to ingress and egress

across the Dry Cedar Creek easement. We perceive no error in the

trial court’s determination that the Lebens were prohibited from

placing a gate across the access easement.

C. Bypass

¶ 49 Next, the Lebens argue that the trial court erred by rejecting

their claim that the Lowes trespassed on, and unreasonably

interfered with, the Dry Cedar Creek easement when the Lowes

built the bypass to circumvent the Lebens’ locked gate at the

archway. In building the bypass, Jerry Lowe also removed riprap

from the bar ditch and replaced it with a culvert to maintain

adequate drainage. We discern no error in the trial court’s ruling.

¶ 50 This issue involves no disputed facts. “When, as here, the

operative facts are undisputed and the issue is one of law, we

review de novo.” Green Tree Servicing, LLC v. U.S. Bank Nat’l Ass’n,

N.D., 192 P.3d 1014, 1017 (Colo. App. 2007).

¶ 51 It is undisputed that the access easement sits on the Lowe

ranch and that the Lebens have the ability to use that easement to

22 access Q72 Road. The Lowes may do as they please with their

property, provided that they do not interfere with the Lebens’

reasonable use of the access easement. See Lazy Dog, 923 P.2d at

316 (“[T]he owner of land burdened by an easement has a qualified

right to put his or her property to any lawful use for which it may

be adapted.”).

¶ 52 The Lowes built the bypass on their own property and, in

doing so, changed the drainage method for a portion of the bar

ditch. There was no testimony or other evidence that the bypass

unreasonably interfered with the Lebens’ use of the access

easement or the Dry Cedar Creek easement or that replacing the rip

rap with the culvert adversely impacted the bar ditch’s ability to

properly drain.

¶ 53 We perceive no error in the trial court’s determination that the

bypass was neither a trespass on the Leben ranch nor

easement or the Dry Cedar Creek easement.

D. Divider Box

¶ 54 The Lebens also contend the trial court erred by finding that

Jerry Lowe did not unreasonably interfere with the divider box

23 when he locked the half of the box used to irrigate the Lowe ranch.

We disagree.

¶ 55 The divider box involves the interpretation of the settlement

agreement, which we review de novo. See Bumbal, 165 P.3d 845.

¶ 56 The divider box was installed as part of the July agreement,

which incorporated the June agreement by reference. Under those

agreements, the Lowes’ predecessors — the Kelsos — paid the

Lebens $4,000 for the water pipeline that connected to the divider

box and the use of half the divider box. The June agreement

specifically stated that the “divide[r] box and ditch . . . will belong

equally to both parties and be jointly maintained.”2 The Lowes

succeeded to joint ownership of the divider box when they

purchased the Lowe ranch.

2 The Lebens note that the June agreement was not admitted into

evidence during the trial. But the July agreement, which was admitted into evidence, expressly incorporates the terms of the June agreement. Moreover, Bruce Leben testified at trial about the contents of the June agreement, including the language stating that “the divide box and ditch which feeds it will belong equally to both parties and be jointly maintained.”

24 ¶ 57 Given these facts, we perceive no error in the trial court’s

determination that the Lowes owned half the divider box and that

Jerry Lowe did not unreasonably interfere with the Lebens’ use of

the box when he locked the portion that controlled irrigation of the

Lowe ranch.

E. Fence

¶ 58 Finally, the Lebens contend that the trial court erred by

finding that the Lebens’ fence located near the Dry Cedar Creek

easement was a trespass on the Lowe ranch and by issuing a

mandatory injunction requiring them to remove the fence from the

Lowe ranch without adequately identifying the area of

encroachment. The Lowes counter that the trial court correctly

found that the fence constituted a trespass on the Lowe ranch and

properly ordered that the fence be moved to the Leben ranch.

¶ 59 Based on the current record, we cannot discern from the

court’s order the location of the trespass that it found. Accordingly,

we reverse the portion of the judgment resolving the trespass claim

and remand for additional findings on this issue.

25 1. Standard of Review

¶ 60 We review a trial court’s legal conclusions de novo.

Hummel, ¶ 35. An injunction is an extraordinary and discretionary

form of relief designed to prevent future harm. Trinidad Area Health

Ass’n v. Trinidad Ambulance Dist., 2024 COA 113, ¶ 35. We review

the grant or denial of an injunction for an abuse of discretion. Id.

“A court abuses its discretion if its decision is manifestly arbitrary,

unreasonable, or unfair; is based on an erroneous understanding or

application of the law; or misconstrues or misapplies the law.” Id.

¶ 61 The Lebens first argue that the surveyor should have marked

the boundaries of the properties in the area, so the Lebens could

identify the location of the alleged trespass and that the failure to

do so precluded a trespass finding.

¶ 62 We reject this argument.

¶ 63 Jerry Lowe testified at trial that he had a survey completed

during litigation and discovered that the Lebens’ fence in the

vicinity of the Dry Cedar Creek easement was on the Lowe ranch in

some places.

¶ 64 Specifically, Lowe testified as follows:

26 Q. There was testimony [from the surveyor], and you were here for it, that there is fencing that is encroaching on your property along Dry Cedar Creek. Is that your understanding?

A. Correct. Yes.

Q. And about how much land does that fence you out of?

A. It’s about three acres total. It runs about a mile along Dry Cedar Creek.

Q. Okay. And so three acres, over a mile, how many feet are we talking about?

A. It varies from 15 to 20 feet all along the length of that fence

¶ 65 “The elements for the tort of trespass are a physical intrusion

upon the property of another without the proper permission from

the person legally entitled to possession of that property.”

Betterview Invs., LLC v. Pub. Serv. Co. of Colo., 198 P.3d 1258, 1262

(Colo. App. 2008) (quoting Hoery v. United States, 64 P.3d 214, 217

(Colo. 2003)).

¶ 66 The court heard testimony that the Lebens placed fence posts

on the Lowe ranch without the Lowes’ permission. The court found

the evidence and testimony from the surveyor and Jerry Lowe to be

convincing. That evidence supports the court’s conclusion that the

27 fence trespassed on some portions of the Lowe ranch along the

southern boundary of the Leben ranch.

¶ 67 The court’s judgment required the Lebens to relocate the fence

“solely on the Leben property.” But it was incumbent upon the

court to identify the location of the trespass that it found in a

manner that would allow a reasonable person to identify the area of

the trespass and the action required to correct the trespass. See

Home Shopping Club, Inc. v. Roberts Broad. Co. of Denv., 961 P.2d

558, 563 (Colo. App. 1998) (“An injunction prohibiting conduct

must be sufficiently precise to enable the party subject to the

equitable decree to conform its conduct to the requirements

thereof.”). The trial court referred to an excerpt from Exhibit P,

which depicted the encroachment of the fence along the Dry Cedar

Creek easement. The order stated, “The position of the fence is

depicted in [E]xhibit P, above.” And the court reproduced in its

order a portion of Exhibit P. But the language of the order is not

clear whether the area of encroachment encompasses all of Exhibit

P, or just the small portion reproduced in the trial court’s order.

Given these ambiguities, we agree with the Lebens that the

injunction order is deficient in two respects. See id.

28 ¶ 68 First, we are not sure whether the injunction requires the

Lebens to move the fence to the southern boundary of the Lebens’

portion of the Dry Cedar Creek easement or the northern boundary

of the Lebens portion of the Dry Cedar Creek easement. At first

blush, it seems illogical to assume that the court intended the

Lebens to move the fence to the southern boundary of the Lebens’

portion of the Dry Cedar Creek easement east of the archway,

because that would place the fence in the center of the Dry Cedar

Creek easement. On the other hand, the centerline of the Dry

Creek easement corresponds with the southern boundary of the

Leben ranch, so placing the fence there would also arguably be

consistent with the court’s order. Alternatively, the court may have

intended to require the Lebens to move the fence just north of the

centerline to the northern boundary of the Dry Cedar Creek

easement, which would be within the Leben ranch and outside the

Dry Cedar Creek easement.

¶ 69 Second, we are not sure from the terms of the trial court’s

order what stretch of the fence needs to be moved. Is it only that

portion of the fence depicted on the part of Exhibit P that was

reproduced in the trial court’s order, which appears to be part but

29 not all of the encroachment identified in the whole of Exhibit P? Or

did the trial court intend to require the Lebens to move all portions

of the fence encroaching on the Lowe ranch as depicted in the

whole of Exhibit P, rather than just the small part reproduced in

the court’s order? We are unable to answer these questions based

on the terms of the trial court’s order and the record.

¶ 70 Given the foregoing, we reverse that portion of the trial court’s

judgment entering a mandatory injunction requiring the Lebens to

move the fence. On remand, the trial court must clarify what

portion of the fence along the southern boundary of the Dry Cedar

Creek easement encroaches on the Lowe ranch. And the court

must identify the location where any encroaching portions of the

fence must be relocated. The court, in its discretion, may permit

additional evidence and argument on remand to resolve those two

issues. See Gateway Logistics, Inc. v. Smay, 2013 CO 25, ¶ 3.

F. Costs

¶ 71 The Lebens contend on appeal that they are the prevailing

party and therefore entitled to an award of their costs. However,

both parties prevailed on one or more of their appellate contentions.

30 Under the circumstances, we conclude that neither party is entitled

to an award of appellate costs. See C.A.R. 39(a)(4).

IV. Disposition

¶ 72 We affirm the trial court’s judgment in part, reverse the

judgment in part, and remand for further proceedings consistent

with this opinion.

JUDGE FREYRE and JUDGE BROWN concur.