Koenig v. Gaines

• Decision Date: 08 April 1968
• Docket Number: No. 22058,22058
• Citation: 165 Colo. 371,440 P.2d 155
• Parties: Alfred E. KOENIG, Plaintiff in Error, v. J. Leonard GAINES and George W. Crawford, Defendants in Error.
• Court: Colorado Supreme Court

Page 155

440 P.2d 155

165 Colo. 371

Alfred E. KOENIG, Plaintiff in Error, v.J. Leonard GAINES and George W. Crawford, Defendants in Error.

No. 22058.

Supreme Court of Colorado, In Department.

April 8, 1968.

Rehearing Denied May 6, 1968.

Inman, Flynn & Coffee, Denver, for plaintiff in error.

Hutchinson, Black & Hill, Boulder, for defendants in error.

HODGES, Justice.

The plaintiff in error filed an action in the trial court seeking an order enjoining the defendants in error from obstructing an alleged public road.The parties will be referred to as they appeared in the trial court or by name.The defendants aver that the purported public road, which ran through their land, had been abandoned and that there was another road available to the plaintiff for access to his mining claims.After trial to the court during which the trial judge visually examined the roads in question, judgment was entered for the defendants.

From this judgment, the plaintiff brings this writ of error and urges reversal on the grounds that the trial court erred as a matter of law in its findings of fact and conclusions of law which premised the court's judgment.

Ownership of the Alaska and Blue Ribbon mining claim properties was conveyed to plaintiff in December 1963.Shortly thereafter, this action was commenced to enjoin the defendants from obstructing the so-called Sunbeam Gulch Road, which traverses Lots 69 and 70 owned by the defendants.

The plaintiff claims that the Sunbeam Gulch Road is a public highway through the land of the defendants and that it has been used generally by the public since prior to 1902 for access to the properties now owned by the plaintiff.The plaintiff therefore claims that defendants had no right to obstruct this road by a fence and 'no trespassing' sign.In addition to a general denial, the defendants aver that the plaintiff at all times since acquiring his mining claims has had other reasonable and suitable access to the claims and that the so-called Sunbeam Gulch Road through the defendants' land has been abandoned for a period of over forty years.

The pre-trial order delineated the following determinative issues to be resolved by the trial court:

'2.Whether the route known as the Sunbeam Gulch Road is in fact a road.

5.The location or existence of other means of access to the property of the plaintiff.

6.Whether there are facts to support the defendants' affirmative defenses of abandonment.'

In its 'Findings of Fact, Conclusions of Law, and Decree', the trial court found as follows:

'At the commencement of the trial, the Court inspected the general area in question and viewed visible evidence that at one time a road had existed, extending from the present county road, up what is known as Sunbeam Gulch, and across the Defendants' lands to the Alaska.According to testimony of the Defendants' witness, the road up Sunbeam Gulch was not in use in 1935 and there is additional testimony to support a finding that the road has not been used, except for occasional, random and infrequent pedestrian traffic, for the past 30 years.The evidence shows that some time prior to the year 1935, another road was constructed which extends from the existing county road along the northerly side of Sunbeam Gulch and past the Defendants' properties leading to the mining properties to the west thereof.This latter mentioned road has been in continuous use for more than 30 years and the Court finds that said road crosses a corner of the Alaska claim.The Court further finds that sometime in 1961, limited operations were conducted on the Alaska and that access was gained by leaving the presently used road at a point on the west line of Lot 70 and thence across Lot 71 and the Columbus Lode without traversing any part of the former road as it once crossed the Defendants' properties.The Court further finds from the testimony, including the testimony of the Plaintiff, that there are other means of access available to the Plaintiff by which he may reach the Alaska and the Blue Ribbon, without the need for traversing either Lot 69 or 70.

The Court further finds that, in 1955 or 1956, when the Plaintiff first became interested in the Alaska and the Blue Ribbon, the former road up Sunbeam Gulch and across the Defendants' properties was not in use; at this time, the only means of access was the present road to a point west of the Crawford tract and thence into Sunbeam Gulch across Lot 71 and the Columbus Lode, which Columbus Lode is also owned by the Plaintiff.The Court further finds that the same...