Barker v. Bd. of Cty. Com'Rs of Cty. of La Plata, CIV.A. 97-B-1912.
| Decision Date | 12 November 1998 |
| Docket Number | No. CIV.A. 97-B-1912.,CIV.A. 97-B-1912. |
| Citation | 24 F.Supp.2d 1120 |
| Parties | Ruth BARKER and William T. Stephens, Jr., Trustee of the Thomas W. Sefton Trust, Plaintiffs, v. THE BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF LA PLATA, COLORADO, Tom Henderson, the United States Forest Service, Theodore Levin and Pamela S. Levin, Seymour L. Gross and Elaine L. Gross, Ronald S. Shafer and Georgia G. Shafer, John H. Miller and Barbara C. Miller, Maxine Walker Perini, Donald L. Briggs, Berna Deane-Briggs, Nila Gaye Briggs Sterns, Donald Earl Briggs, Jason Edward Briggs and Ronald L. Enge, the Heirs of Reese McCloskey, Vincent Walker Perini, Frank Thomas Perini, Charles Whittling Perini, and All Unknown Persons Who Claim Any Interest in the Subject Matter of This Action, Defendants. |
| Court | U.S. District Court — District of Colorado |
William E. Zimsky, L.W. McDaniel, Durango, CO, for Plaintiffs.
Jeffrey P. Robbins, Michael McLachlan, Durango, CO, for Defts. La Plata County, Enge, Briggs, Sterns.
Fred C. Kuhlwilm, David Reese Miller, Denver, CO, for Deft. McCloskey.
Robert D. Clark, Assistant U.S. Attorney, Denver, CO, Helena Jones, U.S. Dept. of Agriculture, Lakewood, CO, for Deft. U.S. Forest Service.
Ted C. Wright, Durango, CO, for Defts. Gross and Levin.
Stephen D. Alfers, Craig R. Carver, Denver, CO, for Perini defendants.
In this action to quiet title to Lewis Creek Road in the County of La Plata, Colorado, plaintiff Ruth Barker ("Mrs. Barker") moves for partial summary judgment regarding the legal effect of Resolution 1976-84, adopted in 1976 by defendant Board of County Commissioners of the County of La Plata, Colorado ("the County"). Mrs. Barker also moves for partial summary judgment regarding whether defendants can demonstrate that Lewis Creek Road is a public road. Plaintiff William T. Stephens, Jr., Trustee of the Thomas W. Sefton Trust ("the Sefton Trust"), and defendants Vincent Walker Perini, Frank Thomas Perini, and Charles Whitling Perini (collectively, "the Perinis" or "the Perini defendants") join in Mrs. Barker's second motion for partial summary judgment. The Perinis also move for partial summary judgment regarding their ownership of a prescriptive easement to use Lewis Creek Road to access their patented mining claims. The Sefton Trust moves for entry of default and default judgment against defendant United States Forest Service ("the Forest Service"). Lastly, the Perinis and Maxine Walker Perini move for her dismissal because she neither claims nor owns any right, title, or interest in Lewis Creek Road. The motions are adequately briefed and oral argument will not materially aid their resolution. Jurisdiction exists pursuant to 28 U.S.C. §§ 1331, 1442 & 2409a (1997).
For the reasons set forth below, I grant, as stipulated, Mrs. Barker's motion for partial summary judgment regarding the validity and legal effect of Resolution 1976-84. I deny Mrs. Barker's motion for partial summary judgment regarding the defendants' ability to show Lewis Creek Road is a public road. I also deny the Sefton Trust's motion for entry of default and default judgment. Lastly, I grant the Perinis motion for partial summary judgment and the motion to dismiss Maxine Walker Perini.
Mrs. Barker commenced this quiet title action on May 8, 1997 in the District Court for the County of La Plata, Colorado. Mrs. Barker contends that Lewis Creek Road is private where it crosses her mining claims in La Plata County. The County and the Forest Service aver that the entirety of Lewis Creek Road is a public road.
In her original and amended complaints, Mrs. Barker named Thomas W. Sefton as a defendant. By written order entered on November 28, 1997, William T. Stephens, Jr., Trustee of the Thomas W. Sefton Trust, was substituted for Thomas W. Sefton. By written order entered on August 14, 1998, the Sefton Trust was re-aligned and became a named plaintiff. Like Mrs. Barker, the Sefton Trust contends that Lewis Creek Road is private where it traverses the trust's mining claims. The Sefton Trust does not contest the rights claimed by Mrs. Barker.
The Perinis, owners of patented mining claims, claim a right to use the entirety of Lewis Creek Road. The Perinis claim they acquired, pursuant to federal mining laws, the right to use those portions of the road that traverse public lands administered by the Forest Service. The Perinis further claim they acquired, by prescriptive use, the right to use those portions of the road that traverse private lands. All parties recognize the validity of the Perinis' claimed prescriptive right of use.
The heirs of Reese McCloskey ("the heirs of McCloskey"), also owners of mining claims, contend that the entirety of Lewis Creek Road is privately-owned. They allege that they acquired, by prescriptive use, the right to use that portion of Lewis Creek Road that runs from County Road 124 to Walls Gulch.
Default judgment entered on October 23, 1998 against defendants Tom Henderson, Theodore Levin, Pamela S. Levin, Seymour L. Gross, Elaine L. Gross, Ronald S. Shafer, Georgia G. Shafer, John H. Miller, Barbara C. Miller, and all unknown persons who claim any interest in the subject matter of this action ("the defaulting defendants"). The default judgment declares that the defaulting defendants have "no right, title, or interest in the real property that is the subject of this quiet title action." The default judgment, therefore, applies to all claims, cross-claims, and counterclaims against the defaulting defendants.
The following facts are undisputed unless otherwise noted. Lewis Creek Road is located within a remote area of the San Juan National Forest, approximately 22 miles from Durango, Colorado. It begins at County Road 124, also known as La Plata Canyon Road. The terrain is steep and mountainous. From its junction with County Road 124, Lewis Creek Road runs approximately 3 1/3 miles in an easterly direction to the summit of Eagle Pass. Lewis Creek Road then continues 1 mile down the eastern side of Eagle Pass to a dead-end. It traverses public land within the San Juan National Forest, as well as several privately-owned mining claims.
Mrs. Barker owns three mining claims, the Bonanza Extension Lode Mining Claim, the Eagle Pass Mining Claim, and the Eureka Mining Claim (collectively, "the Barker Claims"). The heirs of McCloskey own the Barnagatt Mill Site, the Barnagatt No. 2 Mill Site, and the Crete Mining Claim (collectively, "the McCloskey Claims"). The Sefton Trust owns the Flying Swede Mining Claim and the Terrible Swede Mining Claim (collectively, "the Sefton Claims"). The Perinis own the Ashland Lode, the Parole # 2 Lode, the Sylvan # 2 Lode, the Ten Broeck Lode, the Parole Ext Lode, the Brawner Lode, the Durango Girl Lode, and the New Hope Lode (collectively, "the Perini Claims"). The Briggs own the Gold King Mining Claim ("the Briggs Claim"). Lewis Creek Road crosses through the Barker Claims. The McCloskey Claims, the Sefton Claims, the Perini Claims, and the Briggs Claim abut or are accessed from Lewis Creek Road. (Pretrial Ord. of 10/29/98 at 7.)
The Perinis or their predecessors in title have used Lewis Creek Road, including those portions that cross the Barker Claims and public lands, to access the Perini Claims since 1883 when the Ashland-Ten Broeck Mine commenced operations. They also used Lewis Creek Road to access the New Hope and Durango Girl Mines beginning in 1893. The parties concede that, because of such historic use by the Perinis or their predecessors in title, the Perinis acquired a non-exclusive prescriptive easement to use the Lewis Creek Road from its origin at County Road 124 to its dead-end on the other side of Eagle Pass, including those portions of the road that cross the Barker Claims and public lands. (Pretrial Ord. of 10/29/98 at 8.)
Rule 56 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The non-moving party has the burden of showing that issues of undetermined material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A party seeking summary judgment bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, that it believes demonstrate the absence of genuine issues for trial. Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Mares v. ConAgra Poultry Co., Inc., 971 F.2d 492, 494 (10th Cir.1992). Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in the complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried. Otteson v. United States, 622 F.2d 516, 519 (10th Cir.1980); Fed.R.Civ.P. 56(e). These specific facts may be shown "by any of the kinds of evidentiary materials listed in Rule 56(c), except the pleadings themselves." Celotex, 477 U.S. at 324, 106 S.Ct. 2548.
Summary judgment is also appropriate when the court concludes that no reasonable juror could find for the non-moving party based on the evidence present in the motion and response. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment should not enter if, viewing the evidence in a light most...
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