City of Lakewood v. Armstrong

• Decision Date: 28 December 2017
• Docket Number: Court of Appeals No. 16CA1494
• Citation: 419 P.3d 1005
• Parties: CITY OF LAKEWOOD, Colorado, a Colorado home rule municipality, Plaintiff-Appellee, v. Joyce B. ARMSTRONG and Mary E.J. Armstrong Trust, Defendants-Appellants.
• Court: Colorado Court of Appeals

419 P.3d 1005

CITY OF LAKEWOOD, Colorado, a Colorado home rule municipality, Plaintiff-Appellee,

v.Joyce B. ARMSTRONG and Mary E.J. Armstrong Trust, Defendants-Appellants.

Court of Appeals No. 16CA1494

Colorado Court of Appeals, Div. II.

Announced December 28, 2017

Hoffmann, Parker, Wilson & Carberry, P.C., M. Patrick Wilson, Kathryn M. Sellars, Denver, Colorado, for Plaintiff-Appellee.

Timmins LLC, Jo Deziel Timmins, Edward P. Timmins, Denver, Colorado, for Defendants-Appellants.

Opinion by JUDGE HAWTHORNE

¶ 1 Defendants, Joyce B. Armstrong and the Mary E.J. Armstrong Trust (the Armstrongs), appeal the district court's summary judgment for plaintiff, City of Lakewood (Lakewood), declaring that a deed conveying an express easement over the Armstrongs' property was a valid and enforceable easement appurtenant. We affirm.

I. Facts and Procedural History

¶ 2 The undisputed facts establish that on June 18, 1984, Lois Jones Mackey executed a deed (Mackey deed) purporting to convey a "permanent public easement for ingress and egress" over a portion of the southeast corner of her property to Jefferson County. The deed was recorded in the Jefferson County Clerk and Recorder's Office that same day. Lakewood owned property directly east and north of Mackey's property, but Jefferson County did not own any adjacent property. Lakewood's adjacent property consisted of the Bear Creek Greenbelt.

¶ 3 A month later, Jefferson County executed a deed to Lakewood (Commissioners deed) conveying the Mackey deed easement using the same legal description. The Commissioners deed contained a reverter clause that required Lakewood to use the easement exclusively for public open space, park, and recreational purposes. This deed was recorded in October 1984 in the Jefferson County Clerk and Recorder's records.

¶ 4 In 2011, the Armstrongs bought the property from Mackey's successor in interest and occupied it. At some point, the Armstrongs attempted to obstruct the easement's use by locking a gate at one entrance to it. In 2015, Lakewood filed an action for quiet title, declaratory judgment, prescriptive easement, trespass, reformation of the Commissioners deed, and preliminary and permanent injunctive relief. The Armstrongs answered and counterclaimed for quiet title, asserting that the easement was invalid. Lakewood requested partial summary judgment on its claims for declaratory judgment, quiet title, and reformation of the Commissioners deed. The Armstrongs filed a cross-motion for summary judgment in their favor on all of Lakewood's claims.

¶ 5 Before trial, the district court granted Lakewood's summary judgement motion for declaratory judgment, quiet title, and reformation.¹ The court found that the easement was a valid express easement appurtenant over the Armstrongs' property for use by the public and Lakewood. The court denied the Armstrongs' motion for summary judgment and entered a final order and decree.

II. Standard of Review

¶ 6 The court's summary judgment noted that "[t]he parties agree that ... there is no genuine issue of material fact in dispute as to the question of whether an express easement exists and that this issue is appropriate for resolution on summary judgment." Because all issues raised by the Armstrongs on appeal were decided by summary judgment, the parties agree that a de novo review standard applies. We agree.

¶ 7 We review an appeal of a summary judgment de novo. Edwards v. Bank of Am., N.A. , 2016 COA 121, ¶ 13, 382 P.3d 1272. Summary judgment is a drastic remedy and should be granted only when the pleadings and the supporting documents demonstrate that no genuine issue of material fact exists and that the moving party is legally entitled to judgment. W. Elk Ranch, L.L.C. v. United States , 65 P.3d 479, 481 (Colo. 2002).

III. The Commissioners Deed Is Valid Because the Easement Is Described with Reasonable Certainty

¶ 8 The Armstrongs assert that the district court erred in granting Lakewood's motion for summary judgment because the Commissioners deed violates the statute of frauds and is void "because it fails to legally describe the easement itself or the dominant estate." We disagree.

A. Applicable Law

¶ 9 An interest in real property, including an express easement, must be created by act or operation of law or contained in a deed or conveyance and subscribed by the party creating or assigning the interest to satisfy the statute of frauds. § 38-10-106, C.R.S. 2017; Strole v. Guymon , 37 P.3d 529, 533 (Colo. App. 2001) (easements are interests in real property).

¶ 10 Words that clearly show the intention to grant an easement are adequate to demonstrate its creation, provided the language in the instrument is sufficiently definite and certain. Hornsilver Circle, Ltd. v. Trope , 904 P.2d 1353, 1356 (Colo. App. 1995). As a nonpossessory interest, an easement does not require the precise description that a possessory interest does. Hutson v. Agric. Ditch & Reservoir Co. , 723 P.2d 736, 740 (Colo. 1986). The instrument instead must identify with reasonable certainty the easement created and the dominant and servient tenements. Hornsilver , 904 P.2d at 1356. No particular words are necessary to grant an easement, and a lack of specificity in describing an easement's location will ordinarily not invalidate it. Stevens v. Mannix , 77 P.3d 931, 932 (Colo. App. 2003) (citing Isenberg v. Woitchek , 144 Colo. 394, 400, 356 P.2d 904, 907 (1960) ).

¶ 11 The general rule is that vagueness in describing the easement "does not go to the existence or validity of an easement," but "an extreme case of vagueness could result in a holding that no easement was granted." Isenberg , 144 Colo. at 399, 356 P.2d at 907 ; see Friends of the Black Forest Reg'l Park, Inc. v. Bd. of Cty. Comm'rs , 80 P.3d 871, 879-80 (Colo. App. 2003) (no easement was created where a conveyance was "subject to" a right-of-way not previously existing and possibly including land not owned by the grantor, and concluding "[w]e cannot determine from the face of the 1921 deed that the lumber company intended to grant the road easement"). "To determine whether an easement has been expressly granted—and, if it has, the extent of such easement—we look first to the deed or other conveyance instrument, construing it to ascertain the parties' intent." Gold Hill Dev. Co., L.P. v. TSG Ski & Golf, LLC , 2015 COA 177, ¶ 48, 378 P.3d 816 (citing Lazy Dog Ranch v. Telluray Ranch Corp. , 965 P.2d 1229, 1235 (Colo. 1998) ). Ascertaining the parties' intent is "[o]ur paramount concern." Lazy Dog Ranch , 965 P.2d at 1235.

B. The Easement's Description in the Commissioners Deed

¶ 12 The Commissioners deed conveyed to Lakewood a "permanent public easement for ingress and egress over the property described in Exhibit ‘A’ attached hereto." (Emphasis added.) The deed and attached Exhibit A provide a detailed metes and bounds description of a 0.362 acre parcel of land lying in the "NW 1/4 of section 34, township 4 south, range 69 west of the 6th P.M., City of Lakewood" in Jefferson County, Colorado. Thus, the Commissioners deed contains "a description of the land that is to be subjected to the easement with sufficient clarity to locate it with reasonable certainty." Hornsilver , 904 P.2d at 1356.

¶ 13 But the Armstrongs contend that the easement is not described because the parties agree that Exhibit A describes the entire servient estate and the easement itself is not described within the servient estate. Even assuming this is so, as noted, "a lack of specificity in describing an easement's location will ordinarily not invalidate it." Stevens , 77 P.3d at 932 (citing Isenberg , 144 Colo. at 400, 356 P.2d at 907 ). The parties agree that the burdened estate is sufficiently identified. So, the easement is not invalid for vagueness where the easement is not particularly identified. Id. at 933 ("Because these documents reasonably designate the land burdened by the easements, we conclude that the easements were not, as a matter of law, invalid because of vagueness."). "If a valid easement is granted without fixing in writing its location, the location may be determined based on the conduct of the parties." Id. ; see, e.g. , Gjovig v. Spino , 701 P.2d 1267, 1268 (Colo. App. 1985) (looking to historical use of the easement where there was no precise description of the easement's location of ingress and egress over the servient estate); Restatement (Third) of Prop.: Servitudes § 2.7 (Am. Law Inst. 2000) ("The great majority of cases require only that the servient estate be described. They do not require that the servitude's location within the servient estate be described.").

¶ 14 The Armstrongs also argue that if the easement and servient estate share the same legal description, as the court found, then the Commissioners deed does not describe a servient estate. The Armstrongs rely on DRD Enterprises, LLC v. Flickema to support this argument. 791 N.W.2d 180, 189 (S.D. 2010) (where a servient estate is not identifiable the conveyance is invalid). But, the deed in that case identified the servient estate only as "grantor's land," and the court concluded that "[t]hese two words do not suggest any point of reference by which one could identify the specific property burdened." Id. Further, the Armstrongs have not cited any authority, and we are not aware of any, supporting the proposition that an easement cannot encompass the entire servient estate with its boundaries being coterminous with those of the servient estate. On the contrary, an easement can encompass the entire servient estate. See Bachman v. Hecht , 659 F.Supp. 308, 316 (D.V.I. 1986) (an easement granted to subdivision purchasers to use beaches designated on the plan as "Plots No. 103, No. 127 and No. 186" implied that the easement covered the entire plots and was not limited to beach areas), aff'd , 849 F.2d 599 (3d Cir. 1988) (unpublished table decision); Jankoski v. Lake Forest Acres Homeowners, Inc. , 107 A.D.3d 1367, 968 N.Y.S.2d...