Martini v. Smith, No. 00SC685.

• Decision Date: 11 March 2002
• Docket Number: No. 00SC685.
• Citation: 42 P.3d 629
• Parties: Arthur P. MARTINI; Karen Martini; William Rich; Maria Rich; Ray Kilmer; Judy Kilmer; Ann Wallis; Richard Bowman; Mary Bowman; and Pioneer Lookout Water District, a Colorado special district, Petitioners, v. Ray SMITH, Respondent.
• Court: Colorado Supreme Court

42 P.3d 629

Arthur P. MARTINI; Karen Martini; William Rich; Maria Rich; Ray Kilmer; Judy Kilmer; Ann Wallis; Richard Bowman; Mary Bowman; and Pioneer Lookout Water District, a Colorado special district, Petitioners, v. Ray SMITH, Respondent.

No. 00SC685.

Supreme Court of Colorado, En Banc.

March 11, 2002.

Hanes & Schutz, P.C., Richard W. Hanes, Timothy J. Schutz, Colorado Springs, Colorado, Attorneys for Petitioners.

Winston & Winston, P.C., Joseph R. Winston, Haydn Winston, Colorado Springs, Colorado, Attorneys for Respondent.

Justice KOURLIS delivered the Opinion of the Court.

This case centers upon a dispute concerning the ownership and permissible use of Simpson Road (the Road), which adjoins the plaintiffs' properties. The Road was first dedicated to public use in a subdivision plat in 1955. The subdivision was, at that time, part of the Town of Palmer Lake. In 1964, the Town de-annexed the subdivision containing the Road. The trial court in this case found, as a matter of law, that upon de-annexation, the Road "ceased existence as a public road" and title vested in Plaintiffs¹ Arthur P. Martini, Karen Martini, William Rich, Maria Rich, Ray Kilmer, Judy Kilmer, Ann Wallis, Richard Bowman, Mary Bowman, and Pioneer Lookout Water District as the abutting property owners.

The court of appeals concluded that the trial court erred in granting summary judgment to Plaintiffs on the basis of the de-annexation. Martini v. Smith, 18 P.3d 776, 778 (Colo.App.2000). Specifically, the court of appeals held that an ordinance purporting to de-annex a subdivision does not conclusively vacate the public roadways within the subdivision. That court remanded the case to the trial court to resolve the factual issue of whether the county has abandoned the Road. Plaintiffs appealed and we granted certiorari.²

We agree with the court of appeals and hold that a de-annexation ordinance does not, by itself, vacate the public roadways in the de-annexed area. We further hold that the disclaimer of El Paso County in this court proceeding also does not suffice as conclusive evidence of abandonment. Hence, we affirm the court of appeals in overturning the trial court and thus remand the case to the trial court for further proceedings.

I.

At issue is a twenty-five foot wide strip of property bordering the southern edge of the Pioneer Lookout Subdivision (the Subdivision) in El Paso County (the County), Colorado.³ The original platting of the Subdivision designated the strip as Simpson Road. The plat of the Subdivision contained a statement dedicating the platted roads to public use. The Town of Palmer Lake accepted the plat in 1955; however, Plaintiffs assert that Palmer Lake never improved or maintained the Road. In 1964, Palmer Lake de-annexed the Subdivision, enacting an ordinance (the Ordinance) stating that "[a]ll of that tract or territory . . . shown in the plat of PIONEER LOOKOUT SUBDIVISION . . . is (each parcel thereof) hereby detached and disconnected from the said Town of Palmer Lake, Colorado."

In 1969, the owners of the Subdivision requested the County to accept maintenance of three of the roads within the Subdivision. The request for acceptance did not include Simpson Road. The County agreed to maintain the three roads. El Paso County has never accepted, improved, or maintained the disputed Road. However, the record contains a copy of the El Paso County assessor's map delineating Simpson Road as a roadway. Further, it contains the 1998 El Paso County road and improvement plan listing Simpson Road as an unmaintained El Paso County Road System road and depicting the Road as an unimproved roadway.

The southern boundaries of Plaintiffs' properties abut the northern boundary of the Road. The northern edge of the Road forms the southern boundary of the Subdivision. Defendant⁴ owns property to the south and west of the Subdivision; the northern border of his property is adjacent to the southern boundary of the Road, separated from the Subdivision by a white rail fence.

The former owners of Defendant's property historically accessed that property via roads on the south side and the northeast side. While Plaintiffs assert that no vehicular traffic utilized the Road prior to the summer of 1998, Defendant contends that he had been using the Road since 1975. Both parties agree, however, that in 1998, Defendant began grading the Road and refused to comply with Plaintiffs' demands that he cease such activity. In response, Plaintiffs initiated a lawsuit against Defendant seeking a judicial determination that they owned the Road by virtue of the vacation and abandonment of the Road, or, alternatively, through adverse possession. The Plaintiffs also asserted claims for trespass and injunctive relief. In their claims, Plaintiffs named both Defendant and El Paso County as defendants.

In response to the complaint, on October 6, 1998, El Paso County filed a disclaimer under C.R.C.P. 105(c) stating that it "hereby disclaims all right, title and interest in and to the property . . . denoted as the `Former Simpson Road.'" Defendant responded by filing a counterclaim asserting that he owned one-half of the Road under Colorado's vacation statute, section 43-2-301, 11 C.R.S. (2001), or, alternatively, that he had acquired rights in the Road by adverse possession.

The parties filed cross-motions for summary judgment on their claims to ownership of the Road. The trial court granted Plaintiffs' summary judgment motion, finding that Palmer Lake vacated the Road upon de-annexation and that, at that point, the Road "ceased existence as a public road." The trial court found that as a result of the vacation, pursuant to section 43-2-302(1)(a), 11 C.R.S. (2001), Plaintiffs, not Defendant, owned the Road. Specifically, the trial court found that Plaintiffs were "the owners, in fee, of those portions of the former Simpson Road that abut each of their respective southerly lot lines and that lie between the extended side lot lines of each of said lots and that the Defendant has no right, title or interest in that land." This appeal followed.

II.

A.

We review here the trial court's entry of summary judgment in favor of the Plaintiffs. Although the standard for analysis of summary judgment is well-established and almost axiomatic, we set it forth in order to frame the question we must address. 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 summary judgment as a matter of law. Vail/Arrowhead, Inc. v. Dist. Court, 954 P.2d 608, 611 (Colo.1998); see also Compass Ins. Co. v. City Of Littleton, 984 P.2d 606, 613 (Colo.1999). 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. Compass Ins. Co.,984 P.2d at 613.

An appellate court's review of a trial court's order granting or denying a motion for summary judgment is de novo. Vail/Arrowhead, Inc., 954 P.2d at 611; see also Joe Dickerson & Assocs., L.L.C. v. Dittmar, 34 P.3d 995, 1003 (Colo.2001) (holding that an appellate court reviews a trial court's granting of a summary judgment motion de novo because it is a question of law); Feiger, Collison & Killmer v. Jones, 926 P.2d 1244, 1250 (Colo.1996) ("`All summary judgments are rulings of law in the sense that they may not rest on the resolution of disputed facts. We recognize this by our de novo standard of reviewing summary judgments.'").

The trial court in this case considered numerous claims, defenses, counter claims, and a motion to dismiss. The trial court received disclaimers of interest in the property from El Paso County and numerous utilities.

B.

The first question is whether the de-annexation ordinance vacated the Road. It is a matter of first impression before this court.

We begin our analysis with the subdivision statutes that governed dedication of public roads within subdivisions at the time of the dedication. Neither party disputes that the Subdivision owners properly dedicated the roads in the Subdivision to public use and that Palmer Lake properly accepted that dedication. Therefore, the legal implications of the dedication must rest initially on the statutes in effect at the time such dedication occurred.

Section 139-1-7, 6 C.R.S. (1953), entitled "Public property dedicated" provided: "All avenues, streets, . . . designated or described as for public use on the map or plat of any city or town, or of any addition made to such city or town, shall be deemed to be public property, and the fee thereof be vested in such city or town."⁵

In addition, section 139-18-1, 6 C.R.S. (1953), specified:

In all cases in which . . . towns have been heretofore organized, and in which lands embraced in the corporate area have been conveyed or known by . . . streets, . . . or in which any such . . . streets, . . . or other divisions of land have been known as such, by reference to some previous plat or map,. . . and when it appears desirable by the owners and proprietors of any such lands to determine the location and boundaries thereof, a plat of the same may be filed as specified in this article.

The article continued by stating that any plat filed should embrace in its description all streets and the width thereof. § 139-18-2, 6 C.R.S. (1953). Further, the article required that the owners of the lands must acknowledge any plat so filed, and, if the plat embraces a description of a street held by the town for a public use, the mayor, on behalf of the town, should acknowledge the plat, when authorized by the resolution of the city council. §§ 139-18-3, -4, 6 C.R.S. (1953). Finally, section 139-18-9, 6 C.R.S. (1953), stipulated:

Upon the filing of any such plat in the office of the recorder of the county, the boundaries of contiguous divisions

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