25CA0442 Roach v Stout 07-30-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0442 Garfield County District Court No. 23CV30169 Honorable Denise Lynch, Judge
Michael Roach, Sr.,
Plaintiff-Appellant,
v.
Barry Stout, a/k/a Barry L. Stout,
Defendant-Appellee.
ORDER AFFIRMED
Division III Opinion by JUDGE BERNARD* Freyre and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 30, 2026
Peck Feigenbaum PC, Daniel J. Sullivan, Heather J. Manolakas, Basalt, Colorado, for Plaintiff-Appellant
JVAM PLLC, Lucas F. Van Arsdale, John E. Mallonee, Quentin H. Morse, Glenwood Springs, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Plaintiff, Michael Roach, Sr., whom we shall call “Mr. Roach,”
appeals the trial court’s order denying his motion for a preliminary
injunction against defendant, Barry Stout, a/k/a Barry L. Stout,
whom we shall call “Mr. Stout.” We affirm.
I. Background
¶2 For the purposes of clarity, we include a map below. It was
originally an exhibit in the record, and we have made a few changes
to it so it will be useful to the reader: We cropped it, we enlarged it
some, and we added labels because the original wording became
hard to read when we changed the exhibit’s size. We did not make
any other changes.
¶3 The map shows several things pertinent to this appeal.
¶4 First, it shows the placement of Mr. Roach’s property,
consisting of five contiguous parcels, numbered 1 through 5, which
are identified on the map as “The Lands of Michael Roach, Sr.”
These parcels are colored red. We shall refer to them cumulatively
as “Mr. Roach’s property.”
¶5 Second, it shows Mr. Stout’s property, which is identified on
the map as “Lands of Barry L. Stout.” This land is colored light
1 green. We shall refer to it as “Mr. Stout’s Property.” As one can
see, Mr. Stout’s property is east of Mr. Roach’s property.
¶6 Third, it shows two roads that are important to our analysis:
the historical access road to Mr. Roach’s property and Otten Gulch
Road.
¶7 Before Mr. Roach bought his property, a man named David
Alcott owned it. (Mr. Alcott is one of several third-party defendants
in this case; none of them are parties to this appeal.) His family
2 trust purchased parcels 1, 3, and 4 from Mr. Stout in 2002, and
parcel 5 from Mr. Stout in 2005. Mr. Alcott obtained parcel 2 from
a third party. Mr. Alcott sold all the parcels to Mr. Roach in 2021.
¶8 Beginning when he bought his property in 2021, Mr. Roach
has accessed it, via parcel 1, on the historical access road. In
November 2023, Mr. Stout put up a barrier to prevent Mr. Roach
from using the historical access road.
¶9 Mr. Roach and Mr. Stout disagree about whether the
paperwork accompanying the sale of the five parcels — first from
Mr. Stout to Mr. Alcott, and then from Mr. Alcott to Mr. Roach —
included an easement allowing first Mr. Alcott and then Mr. Roach
to use the historical access road.
¶ 10 After Mr. Stout blocked the historical access road, Mr. Roach
filed this lawsuit against Mr. Stout. He pled declaratory judgment,
quiet title, reformation of a deed, easement by estoppel, trespass,
and permanent injunction claims. Almost a year later, in October
2024, Mr. Roach filed a motion for a temporary restraining order
and a preliminary injunction preventing Mr. Stout from blocking his
use of the historical access road. After a hearing, the trial court
denied Mr. Roach’s request.
3 II. Standard of Review and Applicable Law
¶ 11 The decision to grant a preliminary injunction lies within a
trial court’s sound discretion. Markwell v. Cooke, 2021 CO 17,
¶ 21. We will only overturn a “court’s decision on a motion for
a preliminary injunction if the court made a legal error or the
decision was manifestly arbitrary, unreasonable, or unfair.”
Anderson v. Applewood Water Ass’n, 2016 COA 162, ¶ 14. When
reviewing a denial of a preliminary injunction, we will uphold a
court’s factual findings “unless they are so clearly erroneous as to
find no support in the record.” Bill Barrett Corp. v. Lembke, 2018
COA 134, ¶ 16, aff’d on other grounds, 2020 CO 73.
¶ 12 A court will grant a preliminary injunction only if the moving
party establishes all six factors of the test set forth in Rathke v.
MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982). Those factors are
(1) “a reasonable probability of success on the merits”; (2) “a danger
of real, immediate, and irreparable injury which may be prevented
by injunctive relief”; (3) “no plain, speedy, and adequate remedy at
law”; (4) “the granting of a preliminary injunction will not disserve
the public interest”; (5) “the balance of equities favors the
injunction”; and (6) “the injunction will preserve the status quo
4 pending a trial on the merits.” Id. But “a party seeking an
injunction as a remedy for wrongful interference with an easement
is not required to prove irreparable harm.” Rinker v. Colina-Lee,
2019 COA 45, ¶ 70.
III. Analysis
¶ 13 Mr. Roach contends the trial court made two clearly erroneous
findings. Each of these erroneous findings, in turn, directly serves
a legal contention arising out of Mr. Roach’s request for a
preliminary injunction.
¶ 14 The first clearly erroneous finding, Mr. Roach submits, was
that the historical access road did not exist in 2002. That
erroneous finding, Mr. Roach continues, led the trial court to the
additional error of deciding he was unlikely to prevail on the merits.
The trial court reasoned he was unlikely to prevail because, if the
historical access road did not exist in 2002, then Mr. Stout did not
convey an easement to Mr. Alcott to use it, and Mr. Alcott did not
have an easement to convey to Mr. Roach.
¶ 15 According to Mr. Roach, the second clearly erroneous finding
occurred when the court decided he could access his property via
Otten Gulch Road. Mr. Roach concedes he can use Otten Gulch
5 Road to legally access parcels 2 and 5 because their deeds contain
express easements allowing access over Otten Gulch Road. But, he
submits, he cannot access parcels 1, 3, and 4 using Otten Gulch
Road because (1) his ownership of parcels 1, 3, and 4, unlike
parcels 2 and 5, is not accompanied by express easements to use
Otten Gulch Road; (2) Otten Gulch Road “crosses private property”;
and (3) Mr. Roach “would need an easement or permission to
access” parcels 1, 3, and 4 via Otten Gulch Road. Accessing those
parcels, therefore, would be “outside the scope of the easement [for
parcels 2 and 5] and would be considered trespass.” So, he finishes
up, the court erred when it found he had access to his entire
property via the Otten Gulch Road.
¶ 16 We begin our analysis of Mr. Roach’s second contention — the
one concerning his access to Otten Gluch Road — by recognizing
Mr. Roach bore the burden of convincing the court that the balance
of equities supported a preliminary injunction in his favor. See
Gitlitz v.
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25CA0442 Roach v Stout 07-30-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0442 Garfield County District Court No. 23CV30169 Honorable Denise Lynch, Judge
Michael Roach, Sr.,
Plaintiff-Appellant,
v.
Barry Stout, a/k/a Barry L. Stout,
Defendant-Appellee.
ORDER AFFIRMED
Division III Opinion by JUDGE BERNARD* Freyre and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 30, 2026
Peck Feigenbaum PC, Daniel J. Sullivan, Heather J. Manolakas, Basalt, Colorado, for Plaintiff-Appellant
JVAM PLLC, Lucas F. Van Arsdale, John E. Mallonee, Quentin H. Morse, Glenwood Springs, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Plaintiff, Michael Roach, Sr., whom we shall call “Mr. Roach,”
appeals the trial court’s order denying his motion for a preliminary
injunction against defendant, Barry Stout, a/k/a Barry L. Stout,
whom we shall call “Mr. Stout.” We affirm.
I. Background
¶2 For the purposes of clarity, we include a map below. It was
originally an exhibit in the record, and we have made a few changes
to it so it will be useful to the reader: We cropped it, we enlarged it
some, and we added labels because the original wording became
hard to read when we changed the exhibit’s size. We did not make
any other changes.
¶3 The map shows several things pertinent to this appeal.
¶4 First, it shows the placement of Mr. Roach’s property,
consisting of five contiguous parcels, numbered 1 through 5, which
are identified on the map as “The Lands of Michael Roach, Sr.”
These parcels are colored red. We shall refer to them cumulatively
as “Mr. Roach’s property.”
¶5 Second, it shows Mr. Stout’s property, which is identified on
the map as “Lands of Barry L. Stout.” This land is colored light
1 green. We shall refer to it as “Mr. Stout’s Property.” As one can
see, Mr. Stout’s property is east of Mr. Roach’s property.
¶6 Third, it shows two roads that are important to our analysis:
the historical access road to Mr. Roach’s property and Otten Gulch
Road.
¶7 Before Mr. Roach bought his property, a man named David
Alcott owned it. (Mr. Alcott is one of several third-party defendants
in this case; none of them are parties to this appeal.) His family
2 trust purchased parcels 1, 3, and 4 from Mr. Stout in 2002, and
parcel 5 from Mr. Stout in 2005. Mr. Alcott obtained parcel 2 from
a third party. Mr. Alcott sold all the parcels to Mr. Roach in 2021.
¶8 Beginning when he bought his property in 2021, Mr. Roach
has accessed it, via parcel 1, on the historical access road. In
November 2023, Mr. Stout put up a barrier to prevent Mr. Roach
from using the historical access road.
¶9 Mr. Roach and Mr. Stout disagree about whether the
paperwork accompanying the sale of the five parcels — first from
Mr. Stout to Mr. Alcott, and then from Mr. Alcott to Mr. Roach —
included an easement allowing first Mr. Alcott and then Mr. Roach
to use the historical access road.
¶ 10 After Mr. Stout blocked the historical access road, Mr. Roach
filed this lawsuit against Mr. Stout. He pled declaratory judgment,
quiet title, reformation of a deed, easement by estoppel, trespass,
and permanent injunction claims. Almost a year later, in October
2024, Mr. Roach filed a motion for a temporary restraining order
and a preliminary injunction preventing Mr. Stout from blocking his
use of the historical access road. After a hearing, the trial court
denied Mr. Roach’s request.
3 II. Standard of Review and Applicable Law
¶ 11 The decision to grant a preliminary injunction lies within a
trial court’s sound discretion. Markwell v. Cooke, 2021 CO 17,
¶ 21. We will only overturn a “court’s decision on a motion for
a preliminary injunction if the court made a legal error or the
decision was manifestly arbitrary, unreasonable, or unfair.”
Anderson v. Applewood Water Ass’n, 2016 COA 162, ¶ 14. When
reviewing a denial of a preliminary injunction, we will uphold a
court’s factual findings “unless they are so clearly erroneous as to
find no support in the record.” Bill Barrett Corp. v. Lembke, 2018
COA 134, ¶ 16, aff’d on other grounds, 2020 CO 73.
¶ 12 A court will grant a preliminary injunction only if the moving
party establishes all six factors of the test set forth in Rathke v.
MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982). Those factors are
(1) “a reasonable probability of success on the merits”; (2) “a danger
of real, immediate, and irreparable injury which may be prevented
by injunctive relief”; (3) “no plain, speedy, and adequate remedy at
law”; (4) “the granting of a preliminary injunction will not disserve
the public interest”; (5) “the balance of equities favors the
injunction”; and (6) “the injunction will preserve the status quo
4 pending a trial on the merits.” Id. But “a party seeking an
injunction as a remedy for wrongful interference with an easement
is not required to prove irreparable harm.” Rinker v. Colina-Lee,
2019 COA 45, ¶ 70.
III. Analysis
¶ 13 Mr. Roach contends the trial court made two clearly erroneous
findings. Each of these erroneous findings, in turn, directly serves
a legal contention arising out of Mr. Roach’s request for a
preliminary injunction.
¶ 14 The first clearly erroneous finding, Mr. Roach submits, was
that the historical access road did not exist in 2002. That
erroneous finding, Mr. Roach continues, led the trial court to the
additional error of deciding he was unlikely to prevail on the merits.
The trial court reasoned he was unlikely to prevail because, if the
historical access road did not exist in 2002, then Mr. Stout did not
convey an easement to Mr. Alcott to use it, and Mr. Alcott did not
have an easement to convey to Mr. Roach.
¶ 15 According to Mr. Roach, the second clearly erroneous finding
occurred when the court decided he could access his property via
Otten Gulch Road. Mr. Roach concedes he can use Otten Gulch
5 Road to legally access parcels 2 and 5 because their deeds contain
express easements allowing access over Otten Gulch Road. But, he
submits, he cannot access parcels 1, 3, and 4 using Otten Gulch
Road because (1) his ownership of parcels 1, 3, and 4, unlike
parcels 2 and 5, is not accompanied by express easements to use
Otten Gulch Road; (2) Otten Gulch Road “crosses private property”;
and (3) Mr. Roach “would need an easement or permission to
access” parcels 1, 3, and 4 via Otten Gulch Road. Accessing those
parcels, therefore, would be “outside the scope of the easement [for
parcels 2 and 5] and would be considered trespass.” So, he finishes
up, the court erred when it found he had access to his entire
property via the Otten Gulch Road.
¶ 16 We begin our analysis of Mr. Roach’s second contention — the
one concerning his access to Otten Gluch Road — by recognizing
Mr. Roach bore the burden of convincing the court that the balance
of equities supported a preliminary injunction in his favor. See
Gitlitz v. Bellock, 171 P.3d 1274, 1278 (Colo. App. 2007)(“In
considering a motion for a preliminary injunction, the trial court
must find that the moving party has demonstrated . . . [the] balance
of equities in favor of the injunction . . . .”). The trial court decided
6 he had not satisfied his burden, ruling Mr. Roach could “access the
property by using the Otten Gulch Road”; he did not need to use
the historical access road.
¶ 17 Our review of the record shows it contains evidence, see Bill
Barrett Corp., ¶ 16, refuting Mr. Roach’s assertion about Otten
Gulch Road. As of 1995, Mr. Stout’s land, including the same
property he still owns and the property he later transferred to Mr.
Alcott, consisted of approximately 700 acres. (At one point between
1995 and 2001, Mr. Stout owned a total of approximately 1300
acres of contiguous land, which he restored to one large parcel and
then subsequently subdivided into seven smaller ones.)
¶ 18 In 1995, in Garfield County Case No. 95CV58, which we shall
refer to as “Stout v. Daley,” Mr. Stout asked the district court to
grant him access to his 700-acre parcel via a road over the property
of a neighbor who is not part of this appeal. As is relevant to our
analysis, the district court declined his request because, among
other things, the district court reached the legal conclusion that he
had access to all his property via Otten Gulch Road.
¶ 19 “When a benefited property has been subdivided, ‘[e]ach
separately owned parcel is entitled to make the uses privileged by
7 an easement or profit . . . .’” Cielo Vista Ranch I, LLC v. Alire, 2018
COA 160, ¶ 112 (quoting Restatement (Third) of Prop.: Servitudes
§ 5.7(1) (A.L.I. 2000)). So, when we combine the law from Cielo
Vista Ranch I with the district court’s decision from Stout v. Daley
concerning Mr. Stout’s ability to access his entire 700-acre parcel
from Otten Gulch Road, we therefore conclude the record supports
the trial court’s decision that Mr. Roach can access parcels 1, 3,
and 4 via Otten Gulch Road.
¶ 20 We conclude, for these reasons, the record supports the trial
court’s finding that Mr. Roach could use Otten Gulch Road to
access all the parcels of his property and the court’s related
determination that the balance of the equities did not favor the
entry of a preliminary injunction.
¶ 21 As a result, we will not address Mr. Roach’s contention
concerning the court’s finding that the historical access road did
not exist in 2002 and its related determination that he was unlikely
to succeed on the merits of his claim. We need not address this
contention because Rathke requires all six factors to be satisfied
before a court grants a preliminary injunction. See, e.g., Bill Barrett
Corp., ¶ 11 (if the moving party does not establish one or more of
8 the Rathke factors, then injunctive relief is not available); Bloom v.
Nat’l Collegiate Athletic Ass’n, 93 P.3d 621, 628 (Colo. App.
2004)(declining to address other Rathke factors when the division
affirmed the district court’s finding on one of them). So, because we
have concluded Mr. Roach has not satisfied one of the Rathke
factors, we need not discuss any of the others.
¶ 22 The trial court’s order is affirmed.
JUDGE FREYRE and JUDGE KUHN concur.