BOARD OF COUNTY COM'RS v. Kobobel

• Decision Date: 19 December 2002
• Docket Number: No. 01CA2450.,01CA2450.
• Parties: BOARD OF COUNTY COMMISSIONERS of the COUNTY OF MORGAN, State of Colorado, Plaintiff-Appellee, v. Elmer KOBOBEL and Mariam Kobobel, Defendants-Appellants, and Wade E. Castor, E. Todd Castor, Karen S. Kelley, and Riverview Cemetery Association, Defendants.
• Court: Colorado Court of Appeals

74 P.3d 401

BOARD OF COUNTY COMMISSIONERS of the COUNTY OF MORGAN, State of Colorado, Plaintiff-Appellee, v. Elmer KOBOBEL and Mariam Kobobel, Defendants-Appellants, and Wade E. Castor, E. Todd Castor, Karen S. Kelley, and Riverview Cemetery Association, Defendants.

No. 01CA2450.

Colorado Court of Appeals, Div. I.

December 19, 2002.

Certiorari Denied July 28, 2003.

George N. Monsson, County Attorney, Fort Morgan, Colorado, for Plaintiff-Appellee.

Anderson and Chapin, P.C., Robert B. Chapin, Brush, Colorado, for Defendants-Appellants.

No Appearance for Defendants.

Opinion by Judge MARQUEZ.

Defendants, Elmer and Mariam Kobobel, appeal the summary judgment entered in favor of plaintiff, Board of County Commissioners of the County of Morgan, declaring a road along the northern boundary of Kobobels' property to be a public road. We reverse and remand for further proceedings.

According to the materials presented for summary judgment, Kobobels are the owners of Section 15, Township 4 North, Range 58 West of the 6th P.M., in Morgan County. Section 10 is immediately north of Section 15. Defendants Wade E. Castor and E. Todd Castor are the owners of the southwest quarter of Section 10. Defendant Karen S. Kelley owns the southwest quarter of the southeast quarter of Section 10, and the inactive Riverview Cemetery Association owns the southeast quarter of the southeast quarter of Section 10.

At issue here is a road allegedly located along the section line between Sections 10 and 15. The western half of the alleged road was the subject of a 1902 road petition, which was accepted by the county. The eastern half of the alleged road is a two-track field lane on Kobobels' property running east and west immediately south of the section line. In addition to the east-west road, there was a petition in 1902 to create a north-south road through Sections 10 and 15 as well, but that and other roads were realigned in the mid-1930s. Instead of passing through the center of Sections 10 and 15, that road now angles from the center of the north side of Section 10 in a southwesterly direction until it runs along the western edge of Sections 10 and 15.

In 1998, the Kobobels erected a locked gate at the west end of the existing road lying on their side of the section line and excavated ditches across the road.

Plaintiff brought this action to declare the road at issue a public road and to enjoin the Kobobels from obstructing it. The court determined there were no genuine issues of material fact and granted plaintiff's motion for summary judgment and request for injunctive relief. In so ruling, the court concluded that the western portion of the road to a point thirty feet east of the north-south center line of Sections 10 and 15

[r]emained part of the primary county road net in this area from 1902 to the mid-1930s. The road was in use on May 4, 1921. Therefore, this portion of the road in question is a public road because it has been properly dedicated to Morgan County and was open to public traffic on May 4, 1921 pursuant to Section 43-1-202 C.R.S.

The court also concluded that the road was not abandoned or vacated and that abandonment would leave Kelley and the cemetery without access to a public road.

I. Standard of Review

Summary judgment is appropriate when the pleadings and supporting documents demonstrate that no genuine issue as to any material fact exists and that the moving party is entitled to judgment as a matter of law. The nonmoving party is entitled to the benefit of all favorable inferences that may be drawn from the undisputed facts, and all doubts as to the existence of a triable issue of fact must be resolved against the moving party. Martini v. Smith, 42 P.3d 629 (Colo.2002). An appellate court reviews de novo a trial court's order granting summary judgment. Vail/Arrowhead, Inc. v. District Court, 954 P.2d 608 (Colo.1998).

II. Evidence Not Before the Trial Court

As a threshold matter, plaintiff argues that Elmer Kobobel's deposition was not before the trial court and should be disregarded on appeal. We agree.

Arguments and evidence not presented to the trial court in connection with the motion for summary judgment will not be considered on appeal. See Timm v. Reitz, 39 P.3d 1252 (Colo.App.2001).

Here, in support of its motion for summary judgment, plaintiff submitted a number of documents. However, the Kobobels submitted only an affidavit and supplemental affidavit by Elmer Kobobel. Plaintiff also submitted supplemental affidavits and copies of records, and the Kobobels responded with additional authority, but did not include Elmer Kobobel's deposition.

Plaintiff filed a motion to disregard various arguments and supplemental authority presented by the Kobobels, but the record does not include a ruling on that motion.

When a trial court does not rule on a motion, it may be considered implicitly denied, see Jenkins v. Glen & Helen Aircraft, Inc., 42 Colo.App. 118, 590 P.2d 983 (1979), or such failure to rule may be considered harmless error. See Raygor v. Board of County Commissioners, 21 P.3d 432 (Colo. App.2000).

Here, the trial court granted summary judgment on October 31, 2001, stating its ruling was based on the amended complaint, plaintiff's motion, the supporting affidavits, defendants' response, and plaintiff's reply. The index of the record indicates that Elmer Kobobel's deposition was filed in February 2002. Consequently, we consider only the items enumerated by the trial court.

III. Use of the Field Lane

The Kobobels contend there are disputed issues of material fact as to the use of the field lane across their land adjacent to the north section line of Section 15. We agree. The Kobobels assert that the only evidence of record related to use over the years was a neighbor's deposition testimony that the field lane was occasionally used for access to the cemetery. While the Kobobels refer to Elmer Kobobel's deposition to contradict this testimony, for the reasons stated above, we do not consider it here. However, his affidavit states that the lane does not provide access to the cemetery, that the western portion of the road was abandoned, that the lane is used by his family, that only defendant Kelley attempted to use the lane in 1991, and that access to the cemetery is through Section 10.

The neighbor testified that his father used the road as a shortcut three or four times a year in the early 1940s and that he had used it once a year or less since 1980. He also indicated that a local club would go to the cemetery and clean it, although he did not state how they traveled to the cemetery. He further stated that he was unaware of any other people who used the section line road to get to the cemetery.

Plaintiff also offers the geodetic engineer's report concluding that the aerial photographs, maps, and personal reconnaissance present no evidence of the northern route to the cemetery. However, this report is contradicted by the affidavit of plaintiff's own witness, who testified to traveling that route.

The trial court's order states that maps and aerial photographs show that the road has been in regular use for nearly a century. However, for summary judgment purposes this evidence proves only that a road exists, but does not address whether the use of the road was by the public or, as the Kobobels claim, by the property owners and their licensees.

We conclude that this evidence is sufficient to raise material questions of fact as to use of the field lane.

IV. Prescriptive Use

We also agree with the Kobobels' contention that there is insufficient evidence to support the trial court's conclusion that the entire length of the road was established as a public road by prescriptive use under § 43-2-201(1)(c), C.R.S.2002.

Section 43-2-201(1)(c) states that all 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.

A party seeking to establish a public highway across private property must demonstrate (1) the public used the road under claim of right and in a manner adverse to the landowner's property interests; (2) the public use was uninterrupted for twenty years; and (3) the landowner had actual or implied knowledge of the public's use and made no objection to such use. See Board of County Commissioners v. Flickinger, 687 P.2d 975 (Colo.1984); Littlefield v. Bamberger, 32 P.3d 615 (Colo.App.2001).

Plaintiff contends that the neighbor's deposition is sufficient to conclude that the road had been used adversely for the statutory twenty years. However, even if the deposition establishes twenty years of public use, it does not establish that the entire road was used under a claim of right or that the Kobobels or their predecessors knew of the use and made no objection to it.

Thus, we conclude there was insufficient evidence that a public road was established by prescriptive use.

V. Statutory Abandonment

However, we reject the Kobobels' contention that if the road was ever a dedicated public road under § 43-2-201(1)(b), C.R.S.2002, the relocation of the county road system in the 1930s effected as a matter of law a statutory abandonment of the western half of the road under § 43-2-113, C.R.S.2002.

Section 43-2-113 provides in relevant part that:

When a portion of the county primary system is relocated and because of such relocation a portion of the route as it existed before such relocation is, in the opinion of the board of county commissioners, no longer necessary as part of the county road system, such portion shall be considered as abandoned, and title to it shall revert to the owner of the land through which such abandoned portion may lie subject to the provisions of part 3 of this article. If it appears that such abandoned portion is necessary for use as a secondary road, then such abandoned portion shall become a secondary road, upon the

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