DISTRICT COURT, WELD COUNTY, COLORADO 901 9th ▲ COURT USE ONLY ▲

Avenue, P.O. Box 2038, Greeley, CO 80632 (970) 475-2400 DATE FILED: July 2, 2019 11:20
CASE AM NUMBER: Case
Number
Plaintiffs: OP AND WIFE v. Defendants: ASSHOLE
NEIGHBOR and All Unknown Persons Who Claim Any Case No. Case
Interest in the Subject Matter of This Action Number Division 4

Findings of Fact, Conclusions of Law, & Judgment

The plaintiffs, OP and Wife, bring claims for trespass upon easement, permanent

injunction, and declaratory relief related to the defendant, Asshole Neighbor, placing

gates, fences, and apple trees on an access easement owned by the OPs. Asshole

Neighbor brings counterclaims for declaratory relief and permanent injunction against

both OPs, and a private nuisance counterclaim against OP only.

A court trial was held June 17, 2019. Based on the testimony and evidence

presented, the court makes the following findings of fact and conclusions of law.

Consistent with these findings and conclusions, the court enters judgment in favor of

the OPs and against Asshole Neighbor by declaring the parties’ respective rights and

entering a permanent injunction that requires Asshole Neighbor to remove the gates.

1. Findings of Fact

The court finds the following facts to be more likely true than not.

The OPs own an access easement over Asshole Neighbor’s property. Before 1994, the

parcel now owned by Asshole Neighbor and the parcel now owned by the OPs were

joined in a single parcel. In 1994, the original owner subdivided the property into two

parcels through the recorded exemption process with Weld County. Because one lot,

Lot A, had no access to a public road, Weld County initially required that a 30-foot

access easement over the other lot, Lot B, be recorded.

Weld County later changed this requirement to a 50-foot access easement. In a letter

from the Weld County planner to the Weld County commissioners (Exhibit 8), the

planner indicated that the original owners intended to sell Lot B with improvements,

but retain Lot A to rent out on a crop share basis. The planner also indicated, however,
that a ―septic system currently provides Lot B with sewage disposal and is proposed for

Lot A.‖

Thus, the intent was to improve Lot A along the lines of Lot B sometime in the

future. The planner expressed his concern that the recorded exemption request, if

approved, ―would allow for a residence on proposed Lot A, further intensifying the

residential uses ….‖ With this understanding, the county commissioners approved the

recorded exemption. The requirement for a 50foot access easement was likely motivated

by a letter from the planning consultant for the City of Dacono (Exhibit 1), in which he

recommended that ―the access easement should be a minimum of 50’ in width to assure

that it can be used for development [of] a public right of way meeting City Standards.‖

The county commissioners approved the request and the recorded exemption was

then recorded in October 1994. (Exhibit 7). It includes a 50-foot access easement over

Lot B for the benefit of Lot A. The intent of this access easement is unambiguous. It is

intended to be used by the owner of Lot A to gain access to and from WCR 13, also

known as Colorado Boulevard, which is the nearest public road. No restrictions were

put on the use of the access easement. The weight of the evidence shows that the

access easement was intended to become a public right of way at some point in the

future, which is why it was created to be 50-feet wide as opposed to 30-feet wide.
 In 2005, Asshole Neighbor purchased Lot B. At the end of October 2016, the OPs

purchased Lot A. The following diagram is taken from the recorded exemption and has

been modified to show the outlines of Lot A (in red) and the access easement (in

orange):

Weld County Road 13 runs north and south and is depicted on the east side of Lot

B (right side in the diagram). The access easement runs between WCR 13 to Lot A, a

distance around 1,278 feet.

From 2005 until the OPs purchased Lot A in October 2016, the access easement was

used occasionally by the prior owners or their friends and family members. It was also

used for oil and gas access and agricultural purposes. A 14-foot wide dirt road has

formed over time along the south edge of the easement area.

The Asshole Neighbor property has been used as a residence, farm, and to raise

miniature horses. Asshole Neighbor has also planted apple trees on her property, most

recently in the easement area. These trees do not currently interfere with using the dirt

road. The OP property has been used a natural gas well site and salt water disposal

site. While Asshole Neighbor’s husband, Asshole Neighbor’s Husband, suggested in

his testimony that the OP property had historically been used for irrigation access, it is

not clear whether crops have been grown on the property. No testimony was offered

that crops are currently being grown on the OP property.

 Soon after the OPs closed on their property, they began to make improvements

by constructing a gun range. A large earth berm was constructed, which required

numerous loads of dirt to be brought in by dump truck. OP is an avid gun owner and

a certified instructor. The OPs allow members of their church group to access their

property to use the gun range.

Asshole Neighbor and her husband have been upset by the amount of traffic that

the gun range has generated. Asshole Neighbor’s Husband testified to an incredible

amount of traffic on the road, however, claiming that the road has been used by the

OPs’ guests every day for several months at a time, supposedly forcing him to close the

gates at both ends of the access easement on average more than 50 times per day. Just

on Christmas Day, 2016 alone, Asshole Neighbor’s Husband claims that the access road

was used by 22 vehicles and that he had to close the gates 88 times. On Sunday, March

5, 2017, Asshole Neighbor’s Husband claims that the access road was used by 36

vehicles and that he had to close the gates 144 times.

Asshole Neighbor’s Husband concedes that it would take him three minutes on

average to close the gates, which is likely an underestimate of the time required to

travel between the gates and close them. But even at three minutes per gate, Asshole

Neighbor’s Husband would have spent 432 minutes, or 7.2 hours, engaged in closing

gates on Sunday, March 5 alone. Assuming that there would have been breaks for five

minutes or more between each gate closing, and assuming that it was daylight for 12

hours that day, Asshole Neighbor’s Husband would have spent the entire daylight

hours, and well into the night, doing little other than closing gates.
 Asshole Neighbor’s Husband’s testimony about the gates and the OPs’ use of the

easement is not credible and creates serious doubt about how much weight should be

given to the rest of his testimony. Asshole Neighbor’s Husband’s testimony about OP

and his friends harassing Asshole Neighbor’s Husband and Asshole Neighbor is also

not credible.

More credible is OP’s testimony about the usage of the gun range. Exhibit 11-A

presents a more likely picture of the gun range usage, both as to the days on which it

has been used and the number of people using it. Asshole Neighbor’s Husband has

inflated his numbers to garner sympathy and because he and Asshole Neighbor are

upset that the access easement is now being used consistently. Asshole Neighbor has

not met her burden here to show that the OPs’ use of the easement by allowing their

guests to access the shooting range is unreasonable. The OPs have neither caused

damage to Asshole Neighbor’s property or unreasonably interfered with the enjoyment

of her property.

There would be no need to shut the gates if Asshole Neighbor’s Husband and

Asshole Neighbor had not decided to put them up after the OPs entered into the

contract to buy Lot A. From 2005 through mid-2016, no gates existed at either end of the

access easement. Sometime around June 2016, Asshole Neighbor’s Husband installed

the first gate at the back end of the access easement on the border with the OPs’

property. He later installed a gate at the front end of the access easement near WCR 13.

But as neither gate was initially connected to a fence, the only purpose for the gates was

to prevent vehicles from driving on the dirt road to access the OPs’ property.
 Asshole Neighbor’s Husband offered two reasons why he and Asshole Neighbor

decided to construct the gates in summer 2016: (1) to prevent their livestock from

getting out on WCR 13 and (2) to protect their property from thieves. Neither

explanation is credible.

Asshole Neighbor’s Husband and Asshole Neighbor kept livestock for years before

they decided to install the gates, keeping their miniature horses in a 100-foot square

pen. For example, the pen can be seen in the image from Google Earth dated October

2013, the first page of Exhibit 18. They offered no explanation why they weren’t

concerned about their livestock getting out on WCR 13 in the preceding years. And,

because the gates were not initially connected to a fence, the gates did not prevent

animals from escaping. It also makes no sense that Asshole Neighbor’s Husband would

construct the rear gate first, closest to the OPs, rather than the gate closest to WCR 13.

Finally, because Asshole Neighbor and Asshole Neighbor’s Husband had no gate

installed on their separate driveway access to WCR 13 until a week before trial, even

after the gates on the access easement were connected to a fence, their livestock could

still escape to WCR 13.

As for potential thieves, Asshole Neighbor’s Husband testified that the theft which

prompted this concern occurred in 2010. So, the concern about thieves coming onto

their property was not significant enough for six years to motivate Asshole Neighbor

and Asshole Neighbor’s Husband to install gates on the access road. And for the same

reasons that the gates were ineffective for preventing livestock from getting out on

WCR 13, the gates on the access road were ineffective for preventing thieves from

coming onto the property.

The fact that Asshole Neighbor’s Husband installed the gate nearest to the OPs’

property first, and the fact that the gates were constructed before any fencing was

available to attach the gates to, reveal the real motivation for the gates. After they

discovered that the OPs purchased Lot A, Asshole Neighbor and Asshole Neighbor’s

Husband decided to restrict the OPs’ ability to access their property by constructing the
gates, even going so far as to padlock them. The gates are not intended to enhance the
enjoyment of Asshole Neighbor’s property; they are intended to interfere with the OPs’

enjoyment of their property.

The OPs have therefore met their burden to show that the gates unreasonably

interfere with their use of the access easement. Placing gates on the access easement is

not consistent with the intent for which it was granted, which is to provide unrestricted

access between Lot A and WCR 13 with the purpose of ultimately becoming a public

right of way. OP testified about the difficulty he has encountered in dealing with the

gates when trying to enter the access easement from WCR 13 with a trailer. Both OP

and one of his guests testified to the difficulty the gates pose in the winter months when

a part on the back gate sometimes freezes to the ground.

In November 2016, OP discovered that the gates to the access easement were

locked. To gain access to his property, he cut and removed sections of the fence that

were secured to the gates so that he could go around them. He remained within the

access easement at all times.

2. Conclusions of Law

A. The Plaintiffs’ Quiet Title Claim

The court previously granted summary judgment in favor of the OPs on their

quiet title claim, concluding that the OPs own a valid 50-foot access

easement across Asshole Neighbor’s property. The court’s previous ruling is

incorporated

here.
 B. The Parties’ Competing Declaratory Judgment & Permanent Injunction Claims

Under C.R.C.P. 57, the court is authorized to declare the rights and obligations of

the parties with respect to the access easement. Colorado law also provides for

injunctive relief in easement disputes. See Rinker v. Colina-Lee, 2019 COA 45, ¶ 81

(―Injunctive relief is available where the servient owner has interfered with the

dominant owner’s easement.‖). Damages are considered inadequate in an easement

dispute because land is unique and the court must accommodate competing uses. Id., ¶

82. ―Under Colorado law, the traditional and preferred equitable remedy for a

continuing trespass is a mandatory injunction requiring the removal of the

encroachment.‖ Id., ¶ 83.

The extent of an expressly granted easement ―is determined by interpreting the

conveyance instrument‖ with the ―paramount concern‖ being the parties’ intent. Lazy

Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1235 (Colo. 1998). The Colorado

Supreme Court has rejected a rigid ―four corners rule‖ in favor of using extrinsic

evidence to determine the meaning of a deed’s language. Id. A court should therefore

consider the language creating an express easement and interpret it ―in light of all the

circumstances.‖ Id. at 1236 (emphasis omitted) (quoting Restatement (Third) of Property

§ 4.1 cmt. c).

Extrinsic evidence cannot be used to contradict the plain meaning of the language

in the deed. Id. Thus, as applied here, extrinsic evidence cannot be used to contradict

the plain language of the recorded exemption that creates a 50-foot access easement,

to either narrow or widen its width.

But relevant extrinsic evidence can be used to determine the parties’ intent in

creating the easement. When interpreting the parties’ intentions, the relevant extrinsic

evidence includes ―the location and character of the properties burdened and benefited

by the servitude, the use made of the properties before and after creation of the

servitude, the character of the surrounding area, the existence and contours of any

general plan of development for the area, and consideration paid for the servitude.‖ Id.
at 1237 (citing the Restatement (Third) of Property § 4.1 cmt. c).
 The evidence here establishes that the Asshole Neighbor property has been used for

agricultural purposes and for a single-family residence. The OP property has been used

for agricultural purposes and for a natural gas well and salt water disposal. The intent

at the time that Lot A was created was that it continued to be used for agricultural

purposes for a period, but ultimately that it would be sold for the purpose of a

constructing a single-family residence. In other words, Lot A was intended to be used

for similar purposes as Lot B.

The OPs have been using their property to operate a recreational shooting range,

which is a purpose as reasonably related to agricultural uses as is a natural gas well or

salt water disposal. Many farmers and ranchers use their property to target shoot and

improve their proficiency with firearms.

As the owner of the servient estate, Asshole Neighbor enjoys ―all the rights and

benefits of proprietorship consistent with the burden of the easement;‖ and as the

owner of the dominant estate, the OPs’ rights ―are limited to those connected with use

of the easement.‖ Id. at 1234. ―Conversely, the owner of the easement may make any use

of the easement (including maintenance and improvement) that is reasonably necessary

to the enjoyment of the easement, and which does not cause unreasonable damage to

the servient estate or unreasonably interfere with the enjoyment of the servient estate.‖

Id. at 1238. Thus, where the instrument creating the servitude is silent on the servitude’s

operation, the parties’ interests ―must be balanced in order to achieve due and

reasonable enjoyment of both the easement and the servient estate.‖ Id.
 The language creating the access easement contains no limitations that would

prevent the OPs from giving their guests permission to use the easement to access the

shooting range. The dirt road is designed for vehicle traffic and whether the OPs and

their guests use it once per week or twenty times per day, that use is still consistent

with the intended purpose of accessing the OP property from WCR 13. Our Supreme

Court cited the Restatement (Third) of Property § 4.10 with approval in Lazy Dog Ranch,

id. at 1241, and that section recognizes that ―the manner, frequency, and intensity of the

beneficiary’s use of the servient estate may change over time to take advantage of

developments in technology and to accommodate normal development of the dominant

estate.‖ When the access easement was created to support a separate parcel for

agricultural and residential uses, it was anticipated that the access easement would be

used more frequently and more intensely in the future.

Asshole Neighbor has not proved that the OPs’ use of the access easement has

unreasonably damaged her property or that it unreasonably interferes with the

enjoyment of her property. Even if she had, the proper remedy would not be for the

court to limit the OPs’ use of the access easement; it would be to require the OPs to

improve the road by paving it to reduce any dust and noise generated by vehicles

traveling over the dirt road.

The recorded exemption that created the access easement mentions no right to

construct fences or gates over the easement area. See Lazy Dog Ranch v. Telluray Ranch

Corp., 923 P.2d 313, 317 (Colo. App. 1996) (recognizing that locked gates limiting access

to an easement are ―usually considered an unreasonable burden,‖ but that constructing

gates was appropriate when ―the

deed specifically provided for gates at the entrance and exit of the easement‖)

(emphasis added).

Considering the purpose for which the access easement here was created, and after

weighing the balance between the parties’ interests, the court concludes that the

servitude does not allow for gates to be constructed across the road in the access

easement. While Asshole Neighbor has a qualified right to use the access easement for

any lawful purpose to which the easement area may be adapted, she cannot

unreasonably interfere with the OPs’ superior right to use the easement to access their

property. See Lazy Dog Ranch, 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 … [but] cannot unreasonably interfere with the superior right of the

person possessing the easement.‖). Because the gates are intended to impede the OPs’

and their guests’ access to the OPs’ property—rather than to enhance the enjoyment of

Asshole Neighbor’s property—Asshole Neighbor must remove the gates.

While planting apple trees within the access easement is also not contemplated by

the purpose of the servitude, the trees currently do not create an unreasonable burden

on the OPs’ access rights. Asshole Neighbor therefore has the right to use the access

easement to grow apple trees so long as the trees do not unreasonably interfere with the

OPs’ ability to access their property or their ability to maintain and improve the access

easement. Thus, the OPs have the right to maintain the access easement by pruning or

removing any tree that unreasonably interferes with their access rights in the future or

interferes with their ability to maintain and improve the road.

As noted by a division of the Court of Appeals in the first Lazy Dog Ranch case,

―Cattle guards serve the interests of both landowners as they keep livestock pastured

without impeding the other party’s right of ingress or egress and without subjecting

him or her to the hazards involved in opening a gate.‖

923 P.2d at 317. The OPs concede here that cattle guards would not unreasonably

interfere with their access rights. Asshole Neighbor is therefore free to replace the

gates with cattle guards at her own expense if she wishes to do so.

C. The Plaintiffs’ Trespass Claim

―When a dispute arises between two property owners, the court is the appropriate

forum for the resolution of that dispute and—in order to avoid an adverse ruling of

trespass or restoration—the burdened owner should obtain a court declaration before

commencing alterations.‖ Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1237–38

(Colo. 2001). Our Supreme Court recognized in Roaring Fork that nonconsensual,

unilateral alterations jeopardize the valuable property rights vested in an easement. Id.

at 1238.

Our Supreme Court also explained that ―the trial court is entitled to fashion a

remedy at law or in equity‖ for a trespass against an easement. Id.; see also Upper Platte

& Beaver Canal Co. v. Riverview Commons Gen. Improvement Dist., 250 P.3d 711, 717 (Colo.

App. 2010) (―Roaring Fork Club merely identifies two possible remedies when an

easement has been altered: damages for trespass or an equitable resolution of the

competing interests.‖). The OPs seek the equitable remedy of a permanent injunction

requiring Asshole Neighbor to remove the gates.

By constructing the gates, Asshole Neighbor unreasonably obstructed the access

easement and committed a trespass against the OPs’ property interests. Thus,

removal of the gates is also an appropriate equitable remedy to redress the

trespass.
 D. Asshole Neighbor’s Nuisance Counterclaim

To prove a private nuisance claim, the claimant ―must establish that (1) the

defendant’s conduct unreasonably interfered with the use and enjoyment of the

plaintiff's property, (2) the interference was so substantial that it would have been

offensive or caused inconvenience or annoyance to a reasonable person in the

community, and (3) the interference was either negligent or intentional.‖ Saint John’s

Church in Wilderness v. Scott, 194 P.3d 475, 479 (Colo. App. 2008).

To determine whether a defendant’s conduct was unreasonable, the trier of fact

must weigh the gravity of the harm and the utility of the conduct causing that harm.

Woodward v. Bd. of Directors of Tamarron Ass’n of Condo. Owners, Inc., 155 P.3d 621, 628

(Colo. App. 2007). To determine whether an invasion is substantial and unreasonable,

the court must consider the character of the neighborhood; the magnitude, frequency,

or duration of the defendant’s activity exceeding neighborhood norms; and the utility of

the activity. Id. (citing Dan B. Dobbs, The Law of Torts § 465, at 1326–30 (2000)); see also

Restatement (Second) of Torts § 826 (1979).

In Pub. Serv. Co. of Colorado v. Van Wyk, our Supreme Court cited Restatement

(Second) of Torts § 826 with approval. 27 P.3d 377, 392 (Colo. 2001). Under comment (c)

to § 826, the determination whether an intentional invasion is unreasonable is made

from an objective point of view. Under comment (b) to § 826, the ―mere fact that an

invasion of another’s interest in the use and enjoyment of land is intentional does not

mean that it is unreasonable.‖

Asshole Neighbor’s nuisance counterclaim is based on a single instance when OP

removed portions of the fence Asshole Neighbor had constructed next to the gates so

that OP could drive around the locked gates to gain access to his property. Because OP

remained within the boundaries of the access easement and used

the easement for its intended purpose, he did not harm Asshole Neighbor’s real

property

rights. Asshole Neighbor presented no testimony that the removal of the fence caused

any damage other than the annoyance of having to reinstall it. Because Asshole

Neighbor did not have the right to prevent OP from accessing his property by locking

the gates, any harm to Asshole Neighbor is outweighed by the utility of OP’s actions,

which were taken so that he can exercise his property rights. And because it only

happened on a single occasion, OP’s conduct was not a substantial interference.

Thus, Asshole Neighbor has not met her burden to show that OP’s conduct

constituted an invasion of her land or that it was an unreasonable interference with

the use and enjoyment of her property.

3. Order

Accordingly, under C.R.C.P. 58, judgment is hereby entered in favor of the

plaintiffs, OP and Wife, and against the defendant, Asshole Neighbor, on the plaintiffs’

claims and on the defendant’s counterclaims.

The court declares that the OPs have a valid 50-foot access easement across Asshole

Neighbor’s property, as described in the recorded exemption from October 1994, and

that the access easement does not allow for gates to be constructed across the road that

runs within the easement. Asshole Neighbor is ordered to remove the gates across the

access easement within seven days from today, at her own cost. Asshole Neighbor may,

if she chooses to, replace the gates with cattle guards, at her own cost. Asshole

Neighbor is enjoined from placing any obstruction within the access easement that

interferes, restricts, or hinders the OPs’ ability to use the road. While Asshole Neighbor

is not required to remove any apple trees that have been planted within the access

easement, the OPs have the right to prune or remove any tree that unreasonable

interferes with their ability to use, maintain, or improve the road.

 The OPs are the prevailing parties and are entitled to costs under C.R.C.P. 54(d).

They have 21 days from today to submit a bill of costs under the procedures set forth in

C.R.C.P. 121, § 1-22. Any post-trial

motions must be filed within the

14-day timeframe set forth in C.R.C.P. 59.

So Ordered:
July 2, 2019