Board of County Com'rs of Saguache County v. Flickinger

Decision Date04 September 1984
Docket NumberNo. 81SA306,81SA306
Citation687 P.2d 975
PartiesThe BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF SAGUACHE, Plaintiff-Appellee, v. Donald FLICKINGER and Charles R. Flickinger, Defendants-Appellants.
CourtColorado Supreme Court

Robert S. Crites, Jr., Monte Vista, for plaintiff-appellee.

Woodrow, Roushar & Weaver, Gerald D. Weaver, Montrose, for defendants-appellants.

QUINN, Justice.

Donald and Charles Flickinger appeal from a district court judgment declaring a road traversing their property to be a public highway within the meaning of section 43-2-201(1)(c), 17 C.R.S. (1973), because the road had been adversely used by the public for twenty consecutive years. The Flickingers challenge the sufficiency of the evidence underlying the judgment and also claim that the court's application of section 43-2-201(1)(c) to the road in question violates equal protection of the laws and results in an unconstitutional taking of their property without just compensation. 1 We affirm the judgment.


In September 1978 the Board of County Commissioners of Saguache County (board) filed this action in the District Court of Saguache County, naming as defendants Charles Flickinger, the owner of a certain parcel of real property in Saguache County, and his son, Donald Flickinger, who managed the property. The board sought a judicial declaration that a road traversing the Flickinger property and commonly known as Ford Creek Road was a public highway, and also requested an injunction prohibiting the continued obstruction of the road by the Flickingers. The court ultimately declared the road to be a public highway and enjoined the Flickingers from obstructing public use of the road. Because the facts are critical to a proper resolution of the issues before us, we set out in some detail the evidence presented to the trial court.

In 1924 a dirt road was built along Ford Creek in Saguache County, approximately 10 miles west of Saguache, Colorado. 2 The road proceeded in a generally northerly direction for several miles from State Highway 114, passing through private property and lands managed by the United States Bureau of Land Management, and eventually wound to the east into the Rio Grande National Forest. During the next twenty-five years the road was used sporadically by persons seeking access to sightseeing, hunting, and fishing areas, as well as by local ranchers. Sometime during this period a gate was erected at the base of the road, but the gate was not locked.

In 1950 Charles Flickinger purchased a tract of land through which the road traversed. Flickinger, together with his son Donald, has managed the property since that time. At the time of the Flickinger purchase the road commenced on the west side of Ford Creek and, after running in a northeasterly direction for approximately three quarters of a mile, crossed to the east side of the creek. Because swampy portions along the west side of the creek were making travel difficult, an owner of upstream ranch property moved the lower portion of the road in 1953 to that part of the Flickinger property on the east side of Ford Creek. This relocation was effected without objection by Charles Flickinger. The road has remained in approximately the same location since that time. According to a center line survey made by a Bureau of Land Management engineer during the period of 1975 to 1977, the road extends across the Flickinger property from State Highway 114 for slightly more than six tenths of a mile before reaching the property managed by the Bureau of Land Management. That portion of the road traversing the Flickinger property is, with some minor variations, twelve feet in width.

In August 1953 the board filed a county road system map with the Saguache County Clerk. The map, which showed the road as a county road within the county highway system, was based on a 1952 inventory of county roads and depicted the road as commencing on the west side of the creek and then crossing over the stream to the east side. After publication of official notices and two public hearings, the board adopted the map as the official map of the Saguache County road system on October 5, 1953. 3 The effect of the board's action was to select the Ford Creek Road as a county highway that qualified for state maintenance funds. 4 Saguache County, after the board's approval of the map, began receiving state funds to maintain the road and annually filed with the department of highways a road map or letter outlining any changes in the county road system. 5 These submissions to the department of highways continued to show the road as commencing on the west side of Ford Creek until 1967, when the county submitted a map, based on a 1964 road inventory, showing the road as lying entirely on the east side of the stream. County filings after 1967 listed the road as completely on the east side of the stream.

The maps submitted by the county to the department of highways classified the road as "bladed," but maps filed in 1966 and 1967 designated the road as "gravel surfaced." The evidence showed that county employees had graded the road with county equipment many times during the 1960's and 1970's. In addition, the county in 1953 installed two culverts under the road and over the years removed snow from the road at the request of local ranchers.

After the purchase in 1950, Charles Flickinger had maintained a fence and a gate to separate his property from State Highway 114. The gate was located at the road base near its intersection with the state highway. Except for a brief period during the early 1950's, the gate was not locked. The Flickingers, until recent years, had allowed a local rancher to graze livestock on their parcel, and this rancher performed most of the maintenance on the gate.

Since the purchase of the property in 1950 the Flickingers were always aware that the public had used the road in traveling to nearby hunting, fishing, and picnicking areas and that governmental employees had also used it to gain access to adjacent federal lands, and generally kept the road open for public use. While some persons would occasionally ask for permission to use the road, most users did not. Charles Flickinger would occasionally tell hunters to leave his property when they actually camped on it or made a mess of the area, but he never interfered with the use of the road, at least prior to 1977. In that year the Flickingers became concerned about the increasing number of persons traversing the road and placed a lock on the gate. In 1978 the department of highways struck the road from its inventory of public highways and discontinued payment of funds to Saguache County for maintenance of the road.

The trial court, based on the foregoing facts and after personally viewing the road, made the following pertinent findings: that since 1953 the road has been located on the Flickinger property as shown in the center line survey made during 1975-77; that despite the 1952 inventory of county roads showing the starting point of the road on the west side of Ford Creek, the county, beginning on October 5, 1953, continuously designated the portion of the road passing through the Flickinger property as a county highway and serviced the road as the need arose; that members of the public had used the road for recreational purposes without obstruction or objection by the Flickingers from time immemorial up to 1977; that prior to 1977 employees of the United States Bureau of Land Management and United States Forest Service, as well as state wildlife officials, freely used the road to gain access to adjoining lands; and that the gate at the foot of the road had been used to keep livestock away from State Highway 114 and had not been intended to obstruct public access to the road before 1977. The court concluded that the portion of the road passing through the Flickinger property was a public highway within the purview of section 43-2-201(1)(c), 17 C.R.S. (1973), and that application of the statute to the property in question did not deny the Flickingers equal protection of the laws or constitute an unconstitutional taking of property without just compensation. The trial court accordingly entered an injunction prohibiting the Flickingers from obstructing public use of the road.


The Flickingers initially contend that the evidence was insufficient as a matter of law to sustain the trial court's findings and judgment. We find their claim to be without merit.

Section 43-2-201(1)(c), 17 C.R.S. (1973), states in pertinent part that "[a]ll roads over private lands that have been used adversely without interruption or objection on the part of the owners of such lands for twenty consecutive years" are declared to be public highways. This provision codifies the common law method by which the public can obtain title to roadways by adverse use. Mahnke v. Coughenour, 170 Colo. 61, 67, 458 P.2d 747, 750 (1969); see People ex rel. Mayer v. San Luis Valley Land & Cattle Co., 90 Colo. 23, 5 P.2d 873 (1931). A party seeking to establish a road across private property as a public highway must demonstrate the following: (1) members of the public must have used the road under a claim of right and in a manner adverse to the landowner's property interest; (2) the public must have used the road without interruption for the statutory period of twenty years; and (3) the landowner must have had actual or implied knowledge of the public's use of the road and made no objection to such use. See Silver Plume v. Hudson, 151 Colo. 394, 400, 380 P.2d 59, 62 (1963); People ex rel. Mayer, 90 Colo. at 26-27, 5 P.2d at 874-75; Board of County Commissioners v. Ogburn, 38 Colo.App. 212, 214, 554 P.2d 700, 701 (1976). A party relying on section 43-2-201(1)(c) is aided by a presumption that "the character of the use is adverse where such use is shown to have been made for a prescribed period of time." Shively v. Board of County Commissioners, 159...

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