Barnard v. Gaumer, 19164

• Decision Date: 08 May 1961
• Docket Number: No. 19164,19164
• Citation: 361 P.2d 778,146 Colo. 409
• Parties: R. A. BARNARD and Lulu E. Barnard, Plaintiffs in Error, v. W. B. GAUMER, Burton S. Morwood, and City and County of Denver, a Municipal Corporation, Defendants in Error.
• Court: Colorado Supreme Court

Page 778

361 P.2d 778

146 Colo. 409

R. A. BARNARD and Lulu E. Barnard, Plaintiffs in Error, v. W. B. GAUMER, Burton S. Morwood, and City and County of

Denver, a Municipal Corporation, Defendants in Error.

No. 19164.

Supreme Court of Colorado, En Banc.

May 8, 1961.

Arthur M. Morris, Denver, for plaintiff in error.

Donald E. Kelley, City Atty., James H. Snyder, Asst. City Atty., Denver, for defendant in error City and County of Denver.

No appearance for W. B. Gaumer and Burton S. Morwood, defendants in error.

FRANTZ, Justice.

This writ of error is concerned with two civil actions in the trial court, that in which defendant in error W. B. Gaumer was plaintiff, and plaintiff in error R. A. Barnard and others were defendants; the other in which defendant in error Burton S. Morwood was plaintiff, and plaintiffs in error were the defendants.

The two actions were consolidated for trial and are presented here for review as one action. The only parties appearing here are plaintiffs in error R. A. Barnard and Lulu E. Barnard; and the City and County of Denver, one of the defendants in error.

The objects of the first action were to obtain a decree in the trial court establishing as a public road, a strip of land 40 feet in width extending 1.56 miles northwesterly from U. S. highway 40 in sections 9, 15 and 16, Township 4 South, Range 71 West of the 6th Principal Meridian, in the Genesee Park area of the Denver Mountain Parks System in Jefferson County; and to enjoin the defendants therein from 'interfering with or obstructing said road or the use thereof.'

The purposes of the other action were for an injunction with reference to the same road and for damages aggregating the sum of $19,300 because of alleged deprivation of plaintiff's use of the road.

The first action was dismissed on motion as to some defendants and the default of certain other defendants was entered of record therein. Still other defendants entered into stipulation with the plaintiff concerning the subject matter and filed no pleadings.

The two actions came on for trial and the trial court on October 23, 1958, entered 'Findings of Facts, Conclusions of Law and Direction for preparation and Entry of Decree,' leaving for future determination all questions of damages. On a subsequent trial of those issues, the court found in favor of the Barnards and made no award of damages to Morwood.

By separate motions R. A. Barnard and Denver moved to amend the Findings and Decree on the main issues. The motion of the former was denied while the latter's was granted. 'Amended and Corrected Findings of Fact and Conclusions' were entered by the trial court January 13, 1959.

These Findings, in substance, are that the road in controversy is a private and not a public road, which was constructed by the defendant R. A. Barnard in the year 1928. The trial court further found that 'in all instances where an easement was granted [to the Barnards] * * * the fee title remained in the owner and by mesne conveyances the present landowners and their grantees have become owners of the fee in the land over which the road passes.' A finding was also made that no title inimical to the rights of Denver had been shown to that part of the road known as the 'old blacktop' upon lands belonging to Denver.

By its judgment, the trial court ordered that 'each of the owners of lands over which an easement was granted may use said road and may permit others to use the road over their lands, but in so doing each such land owner has the responsibility to keep and maintain said road over his respective land in such condition and repair that the defendant R. A. Barnard is not obstructed or hindered in his use thereof.' It is this portion of the judgment of which the Barnards complain. They ask that it be reversed.

There are only three questions for determination upon this review, viz., (1) Where a landowner grants an easement to another for road purposes and the grantee constructs a road in conformity with the grant, for his own use, do the grantor and his licensees and invitees have a right to use the easement [road] and (2) if so, must the landowner maintain the road so as not to hinder the grantee's use of the easement; and (3) should we sustain the trial court's determination that there was no adverse user in a roadway running across lands owned and possessed by Denver for public park purposes?

We will make disposition of these three questions in the order above stated.

The first problem presented is not difficult of resolution when we consider the nature of the easement. We have held that an easement is a right conferred by grant or acquired by prescription, authorizing one to do or maintain something on the land of another which, although a benefit to the land of the former, may be a burden on the land of the latter. DeReus v. Peck, 114 Colo. 107, 162 P.2d 404. The rights of one holding an easement in the land of another are measured by the nature and purpose of the easement. An easement does not carry any...