Martino v. Fleenor

• Court: Colorado Supreme Court
• Writing for the Court: DAY; HALL, C. J., and McWILLIAMS
• Citation: Martino v. Fleenor, 365 P.2d 247, 148 Colo. 136 (Colo. 1961)
• Decision Date: 02 October 1961
• Docket Number: No. 19428,19428
• Parties: Fred MARTINO, Inez Martino and John F. Martino, Plaintiffs in Error, v. Charles G. FLEENOR, Bessie Lee Hope Ryan, R. E. Rodgers, and Kenneth K. Fleenor, Defendants in Error.

Page 247

365 P.2d 247

148 Colo. 136

Fred MARTINO, Inez Martino and John F. Martino, Plaintiffs in Error, v. Charles G. FLEENOR, Bessie Lee Hope Ryan, R. E. Rodgers, and Kenneth K. Fleenor, Defendants in Error.

No. 19428.

Supreme Court of Colorado, In Department.

Oct. 2, 1961.

Phillip J. Cabibi, Pueblo, for plaintiffs in error.

Phelps, Fonda & Hays, Pueblo, for defendants in error.

DAY, Justice.

We will refer to the parties either by name or as they appeared in the trial court where the Fleenors, Bessie Lee Hope Ryan and R. E. Rodgers were plaintiffs and the Martinos were defendants.

The validity of a judgment and decree establishing a private roadway over lands owned by the Martinos is challenged by this writ of error. The defendants assign cross error to that portion of the decree designating the road as a private way, whereas the plaintiffs contend that all of the evidence establishes that the road is a public one.

The facts are not in dispute. The legal conclusions to be drawn therefrom present the heart of the controversy.

The historical background leading to the institution of the suit was that Charles E. Fleenor, the predecessor in title to the plaintiffs, acquired the various parcels now owned by the plaintiffs, commencing about 1910. By 1920 he had accumulated 480 acres in Sections 19, 20, 29 and 30, Township 22 South, Range 66 West of the 6th P.M., in Pueblo County. This entire parcel is referred to as the Fleenor property. In February, 1950, Charles Fleenor conveyed a parcel of land in Section 30 to himself and to Bessie Lee Hope Ryan, Lillian M. Saathoff, Kenneth K. Fleenor and Charles G. Fleenor as joint tenants. This land was referred to in the testimony as 'Parcel A'. Rodgers acquired his interest in that parcel from Lillian M. Saathoff. On the same date a parcel of land in Sections 19, 20 and 29, referred to as 'Parcel B', was conveyed by Charles E. Fleenor to himself and Rachael Fleenor as joint tenants.

After Charles E. Fleenor's death, Rachael conveyed 'Parcel B' to Elvin J. Huey, Jr., who, in turn, conveyed to one of the defendants, John F. Martino, in 1955.

From 1910 to 1956, Charles E. Fleenor, his family and friends, owners of the land immediately south of the Fleenor's property, members of the public who hunted in the vicinity, and any one else having occasion to get to the Fleenor property, used a road called the 'section line road' which connects with the Beulah Highway, officially designated as Highway 76. This road divides Sections 17 and 18 from the state highway to the south line of the section; thence easterly between Sections 17 and 20 approximately a quarter of a mile, and thence south through Section 20 to 'Parcel B'. In 1956 the Martinos constructed a barricade across the roadway through 'Parcel B' which they acquired, thus denying the plaintiffs access to 'Parcel A'.

The evidence is, and the court so found, that from 1914 the section line road was and is a well defined roadway, easily identifiable. At one time it was fenced on both sides, and, although some of the fence posts are now broken and decared, most of the fence lines are clearly visible, easily discernible, and certain portions of the fence are still in good condition and repair. It was established that in 1930 the county of Pueblo did some maintenance work and that the WPA expended public funds to install certain culverts and maintain the roadway under the direction of Pueblo County. No one ever interfered with the use of this road until the Martinos fenced it off. There was no other access to 'Parcel A' except through 'Parcel B', and from the time the Fleenors split the property into the two parcels, keeping 'Parcel B' for themselves, the use of the roadway across 'Parcel B' was never interfered with until the Martinos acquired it.

The witnesses were agreed, and the Martinos admitted in their brief, that the section line road was used without objection on the part of the defendants for a period of approximately forty-two years. On this point the Martinos assert that because it was without objection it was with their consent, and that, a priori, that to which they consented they could withhold at any time.

There is no testimony that any one sought or obtained or was given consent to the use of the roadway. All of the witnesses testified that they used the road because they 'thought it was a public way'; 'because it was a well-defined roadway to the ranch', and 'because they had a right to use it.' No one ever told them they could or couldn't use the road.

The rule upholding, therefore, plaintiff's acquisition of the right of way over the road by open, notorious and adverse use for the period of forty-two years is well set out in the following language from Trueblood v. Pierce, 116 Colo. 221, 179 P.2d 671, 677, 171 A.L.R. 1270:

'Plaintiffs and their predecessors in title have been in possession of the easement for more than 18 years; there is, as a result thereof, a presumption that their holding was adverse. (citing cases); consequently, it was incumbent upon defendants to overcome this presumption, and this they did not attempt to do. The presumption being that plaintiffs' possession was adverse, the uncontradicted evidence is that plaintiffs and their predecessors in title were in open, notorious and visible use and occupation of the easement under a claimed right thereto for more than eighteen years, and as a result thereof fully established their right to the easement by prescription.' (Emphasis supplied)

The second contention of the Martinos is that because Fleenor owned 'Parcel B' and 'Parcel A' together up until 1950 when by conveyance he split the property, he could not, during the period 1910 to 1950, create an easement in his favor on his own property since a person cannot claim adversely to himself. The court...