Amada Family Ltd. P'ship v. Pomeroy

• Decision Date: 27 May 2021
• Docket Number: Court of Appeals No. 19CA2016
• Court: Colorado Court of Appeals
• Parties: AMADA FAMILY LIMITED PARTNERSHIP, Plaintiff-Appellee and Cross-Appellant, v. Eugene K. POMEROY and Michelle M. Pomeroy, Defendants-Appellants and Cross-Appellees.

494 P.3d 633

2021 COA 73

AMADA FAMILY LIMITED PARTNERSHIP, Plaintiff-Appellee and Cross-Appellant,

v.Eugene K. POMEROY and Michelle M. Pomeroy, Defendants-Appellants and Cross-Appellees.

Court of Appeals No. 19CA2016

Colorado Court of Appeals, Division VI.

Announced May 27, 2021

Brian Kidnay, PC, Brian Kidnay, Montrose, Colorado; Timmins LLC, Edward P. Timmins, Amy K. Hunt, Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant

Masters Law Firm, P.C., David Masters, Montrose, Colorado, for Defendants-Appellants and Cross-Appellees

Opinion by JUDGE RICHMAN

¶ 1 Defendants, Eugene K. Pomeroy and Michelle M. Pomeroy (the Pomeroys), appeal a district court's judgment in favor of plaintiff, Amada Family Limited Partnership (Amada). Amada cross-appeals the district court's determination that it is not entitled to damages for trespass. We affirm the judgment insofar as the district court recognized easements in favor of Amada and the Pomeroys and established their scope and location. We reverse the judgment insofar as the district court determined that the Pomeroys could not have trespassed on Amada's easement and denied Amada damages. We remand this case for a hearing on Amada's trespass claim.

I. Background

¶ 2 Through a series of transactions with Michael and Virginia McGee (the McGees), Amada purchased two parcels of land near Montrose, Colorado, referred to as Parcel A and Parcel D. Because the land to the east of Parcels A and D is impassable, these parcels lack any feasible means of ingress and egress except across two parcels now owned by the Pomeroys, referred to as Parcel B and Parcel C. The four parcels are located as shown below:

¶ 3 Amada asserts that it owns an express access and utility easement over Parcels B and C in favor of Parcel A and an implied access and utility easement over Parcels B and C in favor of Parcel D. When these easements are pieced together, they provide Amada access to and from Uncompahgre Road, the public road to the west of the four parcels, and permit it to develop its land for residential use. The Pomeroys dispute Amada's easement claims. They concede only that Amada has an express access and utility easement over Parcel B (but not over Parcel C) in favor of Parcel A. To resolve the issues raised, we must examine the history of Parcels A through D.

A. Transactional and Procedural History

¶ 4 The McGees acquired Parcels A and B in 2003. In connection with the sale, they received a right-of-way permit (the permit) from the federal government, which owned Parcels C and D at the time. The permit, issued by the Bureau of Land Management (BLM), allowed the McGees to enter and exit their property on an access road (the access road) that began at Uncompahgre Road, traveled north through Parcel B to Parcel C, then turned south, reentering Parcel B near the McGees’ residence.

¶ 5 In 2006, the McGees decided to sell Parcel A. To facilitate the sale, they procured an amendment to the permit. The amendment allowed the owner of Parcel A to create a new "spur" road north of the existing access road. The spur road was intended to permit the owner of Parcel A to access that parcel without driving near the McGees’ residence on Parcel B.

¶ 6 In September 2007, by warranty deed (the 2007 deed), the McGees sold Parcel A to Amada. The deed granted Amada an easement (the 2007 easement) as follows:

Grantor hereby grants to Grantee a 50 foot non-exclusive easement for ingress, egress and utilities, extending by the most direct and drivable route to the Property from Uncompahgre Road. This grant of [a] non-exclusive easement shall include the ground currently used and permitted for access under a permit issued by the Bureau of Land Management (BLM), if and when Grantor or its successors shall acquire title to said ground. It is mutually understood that no present Grant of [an] easement can be made across ground not currently owned by Grantor and that Grantor shall have no duty to provide alternative access while Grantee has legal access under said permit from the BLM....

Grantor and/or Grantor's heirs and/or assigns shall allow a 50 foot easement for ingress, egress and utilities to the benefit of the Grantee or Grantee's heirs and/or assigns in the event Grantor acquires property from the Government that Grantees[’] and Grantors[’] current road is on that goes between Uncompahgre Road and Grantees[’] and Grantors[’] property.

(Emphasis added.) Thereafter, Amada used the existing access road to access Parcel A as specified in the 2007 deed.

¶ 7 In December 2012, the federal government conveyed Parcels C and D to the McGees. Thereafter, when Virginia McGee wanted to access Parcel D, she generally crossed Parcels B and C on the access road driving an all-terrain vehicle. Then, she crossed Parcel A with Amada's permission, using a trail on Parcel A to drive to Parcel D.

¶ 8 In June 2014, the McGees sold Parcel D to Amada. According to Mark Covington, the agent who assisted the parties in negotiating the sale of Parcel A and Parcel D, the parties understood that the 2007 easement would extend to Parcel D because the easement was already being used to access Parcel A and the "title didn't show lack of a right-of-access, so we went with that." The deed to Parcel D did not mention the 2007 easement, but Covington testified that the parties expected Amada to use the access road to get to Parcel D.

¶ 9 In July 2014, the McGees sold Parcels B and C to the Pomeroys. After the sale, Amada continued to use the access road as it had before.

¶ 10 In 2017, Amada built the planned spur road and began using it to access its parcels. The spur road connects to the access road on Parcel C and passes through an elk fence on Parcel C that was installed, without the government's permission, by a person who owned Parcels A and B before the McGees owned them. To clarify the issues surrounding the spur road, we have drawn lines on the parcel map that roughly illustrate the manner in which the access road (the solid line) and the spur road (the dotted line) intersect with a portion of the elk fence (the dashed line).

¶ 11 After Amada built the spur road, and without Amada's consent, the Pomeroys placed a gate across the spur road where it runs through a hole Amada made in the elk fence. The Pomeroys also locked a gate at the entrance to the access road, effectively denying Amada access to its parcels. They subsequently took the position that Amada held no easements of any kind. In response, Amada filed an action for declaratory judgment and trespass.

¶ 12 The Pomeroys counterclaimed seeking, among other things, a declaratory judgment in their favor as to Amada's claimed easements and legal recognition of an easement on Parcel A in favor of Parcels B and C. The Pomeroys argued that an easement on Parcel A is necessary because it allows them to access a headgate, located on Parcel A, that is essential to their irrigation system (the headgate easement).

B. Easements Over Parcels B and C to Parcel A

¶ 13 Before trial, Amada filed a motion for partial summary judgment. It argued that, under the 2007 deed, it owns an express access and utility easement over Parcel B in favor of Parcel A. It further argued that under the after-acquired interest statute, see § 38-30-104, C.R.S. 2020, as applied to the 2007 deed, when the McGees acquired Parcel C in 2012, Amada acquired an express easement over Parcel C in favor of Parcel A. Finally, Amada asserted that it owns an implied access and utility easement across Parcels B and C in favor of Parcel D based on necessity and the McGees’ prior use of the access road to reach Parcel D.¹

¶ 14 In a thorough written order, the district court concluded that when the McGees sold Parcel A to Amada in 2007, Amada obtained an express access and utility easement over Parcel B in favor of Parcel A. It further concluded that, in 2012, under the common law after-acquired interest doctrine, Amada obtained an express access and utility easement over Parcel C in favor of Parcel A. However, genuine issues of material fact remained with respect to the implied easement over Parcels B and C in favor of Parcel D, and the court declined to recognize the easement on summary judgment.

C. Easements Over Parcels B and C to Parcel D

¶ 15 The parties proceeded to a bench trial regarding the existence of an implied easement in favor of Parcel D. At trial, the court also considered whether the Pomeroys committed trespass by, among other conduct, gating the spur road at the elk fence and locking a gate at the entrance to the access road. In addition, the parties asked the court to define the scope and location of any easements recognized or established.

¶ 16 In a written order, the district court concluded that Amada holds an implied access easement over Parcels B and C in favor of Parcel D based on the McGees’ prior use, and an implied easement by necessity, for access and utilities , over Parcels B and C in favor of Parcel D. The court also prohibited the Pomeroys from gating the spur road at the elk fence and it denied Amada's trespass claim.

D. Easement Over Parcel A from Parcels B and C

¶ 17 In addition, the district court considered the Pomeroys’ claim to the headgate easement. Amada conceded the existence of the easement but expressed concern about its location and width. The court's trial order recognized an eight-foot-wide easement over Parcel A in favor of Parcels B and C.

¶ 18 After trial, the Pomeroys filed a C.R.C.P. 59 motion to amend the judgment, asking the district court to make the headgate easement wider and to allow a gate on the spur road at the elk fence. The court denied the motion.

E. Issues Appealed

¶ 19 On appeal, the Pomeroys contend that the district court erred by (1) granting an express easement over Parcel C in favor of Parcel A; (2) granting an implied easement over Parcels B and C in favor of Parcel D; (3) requiring removal of the gate on the spur road; and (4) denying their Rule 59 motion to widen the headgate...