Gleason v. Phillips
| Decision Date | 01 June 1970 |
| Docket Number | No. 24509,24509 |
| Parties | James G. GLEASON and Betty L. Gleason, Plaintiffs in Error, v. W. E. PHILLIPS, Barbara Phillips, Jeff Phillips, and Carl Lombardi, Defendants in Error. |
| Court | Colorado Supreme Court |
Thomas C. Singer, Denver, for plaintiff in error.
No appearance for defendants in error.
James and Betty Gleason, hereinafter referred to as the plaintiffs, brought an action against William Phillips, Barbara Phillips, Jeff Phillips, and Carl Lombardi, hereinafter referred to as the defendants or by name, charging them with recurring trespasses on the plaintiffs' property and seeking relief in the form of an injunction and damages. The defendant answered denying acts of trespass and counter-claimed that the defendants had acquired a right-of-way by prescription over a portion of the plaintiffs' property shared as a common driveway. At trial the judge denied the plaintiffs' claims for relief and entered judgment recognizing an easement held by the defendants over a six foot strip of the plaintiffs' property for the purpose of entering and exiting from their garage.
The plaintiffs raise three contentions of error. (1) There is insufficient evidence to support the finding by the trial judge that the defendants had established their right to an easement by prescription. (2) The judge erred by not finding that the plaintiffs' survey of the property line was the correct boundary between the properties. (3) The judgment of the court is too indefinite to be enforced. We do not agree, and we affirm the decision of the trial court.
The determination of this case once again rests on the application of the familiar rule that we will not disturb a judgment made by a trier of the facts which is based on competent evidence in the record. In evaluating the record in such a case we look at the evidence in the light most favorable to the prevailing party. Viewed in that light, we find the evidence in this case as hereinafter recited.
The controversy in this case involves two continguous lots in Wah Keeney Park, Evergreen, Colorado: lot 41, now owned by the Gleasons, and lot 49, now owned by the Phillipses. Carl Lombardi testified that he purchased lot 49 in 1940 and in the same year built a driveway to provide access to the property. He built a cabin and garage on the lot in 1941. He could not properly use his garage and driveway without passing over a portion of lot 41. It is implicit in his testimony that the driveway, as constructed in 1940, passed over some portion of lot 41.
Lombardi used the cabin and the garage intermittently from 1940 until 1968, going there, as he put it, whenever he felt like it and parking his car in the garage. The only exception was a five year period sometimes between 1954 and 1964 when he lived in the cabin the year around. In 1968 he contracted to sell lot 49 to his granddaughter and her husband, Barbara and William Phillips.
Photographs introduced as exhibits during the trial show that the area found by the trial court to be subject to a prescriptive easement consists entirely of portions of a driveway leading from the properties to a public roadway. Both William and Barbara Phillips testified that during their occupancy of lot 49, it has been necessary to use a portion of the driveway located on lot 41 in order to exit and enter their property, especially in bad weather. William testified that he ordinarily used about eight feet of the plaintiffs' property for ingress and egress.
The plaintiffs purchased lot 41 some fifteen years before the trial date and have lived on the property for the last ten years. Relations between the plaintiffs and the defendants began to deteriorate in 1964 when the parties began to disagree over the location of the boundary line between the two properties. Several surveys of the boundary were made at the plaintiffs' request, and stakes placed in the driveway to mark the boundary were removed by some of the defendants when the stakes interfered with their access to the public road.
The plaintiff argue that there is insufficient evidence that use of the plaintiffs' land as a right-of-way by the defendants has been open, notorious, continuous, and adverse for a period of eighteen years so as to give rise to an easement by prescription.
As we have pointed out, the trial court had before it evidence that the driveway was constructed by Lombardi partly on the property now owned by the plaintiffs, and that the driveway has been used by the defendants since 1941. This evidence is sufficient to establish that the use by the defendants has been open and notorious for the requisite amount of time.
The plaintiffs make the argument that there is no evidence that the...
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