¶18 To obtain title to property by adverse possession, the claimant "must prove that his possession of the disputed parcel was actual, adverse, hostile, under claim of right, exclusive and uninterrupted for the statutory period." Id. at 52. In Colorado, the statutory period is eighteen years. § 38-41-101(1), C.R.S. (2020).
¶19 For adverse possession purposes, to establish the requisite "hostility," the claimant must assert exclusive ownership of the occupied parcel. Hayden, 772 P.2d at 56. Accordingly, if one claiming title by adverse possession of another's property acknowledges the other's title during the adverse possession period, then this will generally interrupt the claimed prescriptive use and thus defeat the requisite hostility and the claim of title by adverse possession. Trask v. Nozisko, 134 P.3d 544, 553 (Colo. App. 2006).
¶20 The elements of a prescriptive easement claim are not the same as those comprising an adverse possession claim. In Colorado, "[a]n easement by prescription is established when the prescriptive use is: 1) open or notorious, 2) continued without effective interruption for the prescriptive period, and 3) the use was either a) adverse or b) pursuant to an attempted, but ineffective grant." Lobato v. Taylor, 71 P.3d 938, 950 (Colo. 2002) ; see also Restatement (Third) of Property (Servitudes) § 2.17 cmt. j (2000) (noting that a servitude can be acquired by prescription only if the adverse use is not interrupted prior to the end of the prescriptive period).
¶21 Thus, unlike a claim of title by adverse possession, a claim to a prescriptive easement does not require a showing of "hostility" (i.e., a claim to exclusive ownership). Rather, in the context of prescriptive easements, an adverse use
is a use made without the consent of the landowner, or holder of the property interest used, and without other authorization. Adverse uses create causes of action in tort for interference with property rights. The causes of action are usually actions for trespass, nuisance, or waste. [Such] uses are adverse or hostile to the property owner in the ordinary sense of the words.
Restatement (Third) of Property (Servitudes) § 2.16 cmt. b (2000).
¶22 Stated otherwise, "[t]o be adverse, ... a use must create a cause of action for interference with an interest in property like trespass, nuisance, or interference with a servitude benefit. To be adverse, the use must be made without authority and without permission of the property owner." Id. at cmt. f; see also Matoush, 177 P.3d at 1270 ("When an easement is created by adverse possession, a party uses land that is not in his or her possession, and does so in a way that is adverse to the property rights of the party who possesses the land."); Restatement (Third) of Property (Servitudes) § 2.16 cmt. a (noting that prescription operates when, among other things, "a person begins using property without the consent or authority of the owner and acquires a servitude if the use continues for the prescriptive period and [the use is open or notorious and continued without effective interruption for the prescriptive period]").
¶23 In light of the foregoing, a claimant seeking to establish a prescriptive easement need not show that it asserted exclusive ownership of the property during the prescriptive period. Rather, such a claimant must show that its use was without permission or otherwise unauthorized and that it interfered with the owner's property interests.
¶24 A prescriptive easement claimant that shows that it has possessed the easement for more than the statutory period is entitled to a presumption of adverse use. Trueblood v. Pierce, 116 Colo. 221, 179 P.2d 671, 677 (1947) ; see also Restatement (Third) of Property (Servitudes) § 2.16 cmt. g ("The majority of American states apply a presumption that an unexplained, open or notorious use of land, continued for the prescriptive period, is adverse, or made pursuant to an implied servitude."). This presumption can be rebutted, however, if the landowner shows that the claimant's use was permissive at any time during the statutory period. See L.R. Smith Invs., ¶ 15, 378 P.3d at 747 ; see also Restatement (Third) of Property (Servitudes) § 2.16 cmt. f (noting that uses made pursuant to licenses are not adverse and that when a property owner gives permission to use property, the law implies that a license was intended).
¶25 Similarly, a landowner can rebut the presumption of adverse use by showing that the claimant's use was made in subordination to the property owner. See Restatement (Third) of Property (Servitudes) § 2.16 cmt. f ("Uses made in subordination to the property owner are not adverse, even if the property owner has not given permission, and the use is not otherwise authorized."). The mere recognition of the landowner's title, however, is not equivalent to subordination to that title. Id. "Subordination requires that the user act with authorization, express or implied, from the landowner, or under a claim that is derivative from the landowner's title." Id.; see also Mount Emmons Mining Co. v. Town of Crested Butte, 40 P.3d 1255, 1258 (Colo. 2002) (noting that "subordination" is the "act or process by which a person's rights or claims are ranked below those of others" and "is essentially a matter of status between parties") (quoting Subordination, Black's Law Dictionary (7th ed. 1999)). Thus, "[t]he fact that the user tried unsuccessfully to purchase a servitude from the landowner does not establish that his subsequent use was subordinate to the landowner's title." Restatement (Third) of Property (Servitudes) § 2.16 cmt. f.
¶26 If the landowner does not overcome the presumption of adverse use and the claimant establishes all of the other elements for a prescriptive easement noted above, then the claimant will be deemed to have established the right to that prescriptive easement. See Trueblood , 179 P.2d at 677.
¶27 With these principles of law in mind, we turn to the facts of this case. Here, Lo Viento Blanco contends that it rebutted the presumption of adverse use by showing that, during the prescriptive period, Woodbridge (1) sought permission in 1991 to landscape the property at issue; (2) sought to purchase the property in 1992; and (3) acted in subordination to Lo Viento Blanco's title by allegedly continuing the use that Lo Viento Blanco's predecessors in interest had authorized. We are unpersuaded by any of these contentions, and we address them in turn.
¶28 First, with respect to Lo Viento Blanco's assertion that Woodbridge's request for permission to landscape interrupted the prescriptive period, Lo Viento Blanco perceives as irrelevant the facts that Foy responded by stating that it would give permission if Woodbridge would agree to certain conditions (including relinquishing any claim to rights in the easement) and that Woodbridge did not accept those conditions and continued using the property as its own. This, however, is a nonpermissive use, as the trial court found. Accordingly, on the facts presented here, the mere fact that Woodbridge sought permission (which it did not ultimately receive) to landscape the disputed parcel did not interrupt its adverse (i.e., nonpermissive) use.
¶29 Second, for the reasons set forth above, we disagree that Woodbridge's offer to purchase the disputed parcel cut off Woodbridge's prescriptive use. Although such an offer might have done so were the issue before us a claim to title by adverse possession (because it would cut off the requisite hostility), a claimant need not show exclusive ownership in the context of a prescriptive easement. And this makes logical sense: a claimant seeking an easement does not necessarily disagree that the purported servient landowner holds title to the property.
¶30 To the extent that Lo Viento Blanco relies on Trask , 134 P.3d at 553, and Pagel v. Reyman, 628 P.2d 166 (Colo. App. 1981), to argue to the contrary, we are unpersuaded. We acknowledge that the Trask division said, "In general, when an adverse occupier acknowledges or recognizes the title of the owner during the occupant's claimed prescriptive period, the occupant interrupts the prescriptive use." Trask, 134 P.3d at 553. In so stating, however, the division did not appear to recognize the above-described distinction between obtaining title by adverse possession and obtaining an easement by prescription. Moreover, the Trask division cited Pagel in support of its above-quoted statement, but Pagel does not support that proposition. In Pagel, 628 P.2d at 168, the parties had entered into a written agreement by which the party claiming a prescriptive easement obtained the right to use the easement at issue. For the reasons set forth above, this express permission during the prescriptive period interrupted the requisite adverse use. See id. at 168-69.
¶31 Finally, to the extent that Lo Viento Blanco's argument relies on a claim of subordination to its title based on either permissive use or Woodbridge's prior offer to purchase the property, we disagree. Specifically, as the trial court found, at no time was Woodbridge's use permissive. Moreover, notwithstanding Lo Viento Blanco's argument to the contrary, as discussed above, a claimant's unsuccessful offer to purchase a servitude from the landowner (here, the disputed parcel) does not establish that its subsequent use was subordinate to the owner's title. And to the extent that Lo Viento Blanco is asserting subordination to its title based on the alleged continuing use that Lo Viento Blanco's predecessors had authorized, we perceive nothing in the record to support the purported prior authorization, and Lo Viento Blanco cites no such record evidence.
¶32 We thus conclude that Lo Viento Blanco has not rebutted Woodbridge's presumption of adverse use, and Woodbridge has proved the remaining elements necessary to establish a prescriptive easement. To the extent that Lo Viento Blanco attempts to raise additional issues before us, we note that we did not grant certiorari on any of those issues, and we decline to consider them.