Matoush v. Lovingood
| Decision Date | 03 March 2008 |
| Docket Number | No. 06SC823.,06SC823. |
| Citation | 177 P.3d 1262 |
| Parties | Carol S. MATOUSH, Petitioner v. David H. LOVINGOOD and Debra Lovingood, Respondents. |
| Court | Colorado Supreme Court |
Howard Morrison, Colorado Springs, Colorado, Attorney for Petitioner.
Felt, Monson & Culichia, LLC, James W. Culichia, David M. Shohet, Colorado Springs, Colorado, Attorneys for Respondents.
In this adverse possession case, we review the court of appeals' opinion in Matoush v. Lovingood, 159 P.3d 741 (Colo.App. 2006).1 There, the court of appeals concluded that the trial court applied the wrong legal standard to a claim to terminate an easement by adverse possession.2 The easement at issue here creates a right-of-way across Respondents David and Debra Lovingood's property for access between Petitioner Carol Matoush's property and an alley adjacent to Lovingoods' property. The Lovingoods allege that they have adversely possessed Matoush's right to use the easement as a right-of-way by openly preventing access between Matoush's property and the alley by building and maintaining fences perpendicular to the easement area for the statutorily-mandated period of time for adverse possession.3 Matoush claims that the statutorily-mandated period of time for adverse possession of an easement that was expressly created but never used, such as the easement in this case, is not triggered until a need for the easement arises, and that, in this case, no need for the easement arose until she tried to sell her property in 2003.
An easement is terminated by adverse possession upon a showing that use of the easement area was: (1) adverse to the easement holder's use of the easement; (2) open or notorious; and (3) continuous, without effective interruption, for the statutorily-mandated period of time for adverse possession. To be adverse, use of the easement area must be incompatible or irreconcilable with the easement holder's right to use the easement.
Following precedent in other jurisdictions, we hold that whether use of the easement area is an incompatible or irreconcilable use sufficiently adverse to trigger the statutorily-mandated period of time for adverse possession of the easement depends upon whether the easement was expressly created and whether the easement has ever been used by the easement holder. When an easement is expressly created but never used, we hold that use of the easement area is not adverse and will not trigger the statutorily-mandated period of time for adverse possession until the easement holder needs to use the easement, demands to use it, and is denied the right to use it.
In this case, the trial court's findings of fact state that the easement was expressly created by warranty deed in 1901 and that there was no evidence presented at trial regarding whether the easement was used as a right-of-way in 1901. It is undisputed that the easement has never been used as a right-of-way since 1969. Our review of the record reveals that there was no evidence presented at trial regarding whether the easement was ever used as a right-of-way between 1901 and 1969. For these reasons, we conclude and hold that the Lovingoods' use of the easement area was not adverse to Matoush's right to use the easement as a right-of-way until Matoush needed to use it for that purpose in 2003. Hence, we reverse the court of appeals' decision and affirm the trial court's ruling that Matoush retains her right to use the easement as a right-of-way for access between her property and the alley. We return this case to the court of appeals to be returned to the trial court for an entry of judgment consistent with this opinion.
The disputed easement in this case affects three residential properties in a long-established city neighborhood in Colorado Springs, Colorado. Petitioner Carol Matoush is the easement holder who owns the property benefited by the easement, 2108 N. Nevada Ave.4 Respondents David and Debra Lovingood own one of the properties burdened by the easement, 118 E. Jefferson St.5 Elizabeth Hayes and her children, Ronald Martwick and Bonnie Wellensiek, own the other property burdened by the easement, 122 E. Jefferson St.6
These properties, along with another property owned by Matoush, comprise a 19,000-square-foot block of four city lots, Lots 17, 18, 19, and 20. Lots 19 and 20 were divided to create what is now Matoush's property in 1901 by the warranty deed that created the disputed easement. The rest of the block was divided into its current configuration in the years following that conveyance. The block of lots is bounded by other residential property to the north, by N. Nevada Ave. to the east, by E. Jefferson St. to the south, and by an alley to the west. Matoush's property is located on the block's northeast corner and is 5,000 square feet in size.
Matoush's other property, which is where Matoush resides but which is not implicated by this case, is also 5,000 square feet in size and is located on the block's southeast corner. Lovingoods' property is 4,500 square feet in size and is adjacent to the alley. Hayes's property is the same size as Lovingoods' property and is located between Lovingoods' property and Matoush's two properties. The easement is a ten-foot-wide, ninety-foot-long strip of land that connects Matoush's property to the alley. The easement burdens the north, and rear, ten feet of the entire width of Lovingoods' property and Hayes's property. The following schematic depicts the parties' properties:
NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE
Matoush acquired title to the property in the block's northeast corner in 1977 through a warranty deed that specifically referenced an easement across the surface and through the subsurface of Lovingoods' property and Hayes's property, reserving "a perpetual right of way over, under, and across the North 10 feet of the West 90 feet of Lot 20 ... for sewer and water pipes and alley purposes." This language was included in each of the eight deeds in the chain of title to Matoush's property, which dates back to 1901.7 David Lovingood acquired title to his property in 2001 through a warranty deed and conveyed the property to himself and his wife, Debra Lovingood, in 2003. Neither of the Lovingoods' deeds nor the deed of their immediate predecessor in title referenced the easement, although at least one prior deed in the chain of title did.8 Elizabeth Hayes acquired title to her property in 1969 through a warranty deed that specifically referenced the easement.9 In 1993, Hayes conveyed the property to herself and her children, Ronald Martwick and Bonnie Wellensiek, through a quit claim deed that did not specifically reference the easement.
When Hayes acquired title to her property in 1969, the easement was being used for sewer pipes and a grease trap. Although the grease trap has since been removed, the sewer pipes running underground between Matoush's property and the alley are still in use. The trial court found that the easement has not been used as a surface right-of-way across Lovingoods' property and Hayes's property for access between Matoush's property and the alley since at least 1969. At some point in time prior to 1969, fences were built to enclose most of the easement area within the backyards of Lovingoods' property and Hayes's property. No evidence was presented at trial regarding whether the easement was ever used as a right-of-way between 1901 and 1969. Since 1969, these fences have been maintained or replaced.
A small gate in the chain link fence between Lovingoods' property and Hayes's property has been overgrown with shrubbery, and thus has been unused, since at least 1969. Since the early 1980s, the gate has been at least partially obstructed by a short wood fence on Hayes's property. Since the late 1990s, the gate has been fully obstructed by a tall wood fence on Lovingoods' property. The west twenty-eight feet of the easement area is not fenced and remains open to the alley. The trial court also found that a three-wall fiberglass shed located within the easement area on Lovingoods' property is not a permanent structure. There are other structures within the backyards of Lovingoods' property and Hayes's property, but they are not located within the easement area. A carriage house situated within the backyard of Lovingoods' property bounds the easement area's southwest corner. A four-wall metal shed situated within the backyard of Hayes's property bounds the easement area's southeast corner. The rest of the easement area is covered with grass or other landscaping, including a rock garden within the backyard of Hayes's property. A tree was once growing within the easement area, but it was removed several years ago.
In 2003, Matoush attempted to sell her property to a buyer who inquired about using the easement as a driveway for vehicle access between Matoush's property and the alley. There is a driveway on Matoush's property that provides vehicle access from N. Nevada Ave. to a garage located on Matoush's property. The buyer has proposed removing the driveway, relocating the garage, paving the easement area, and using the easement as a driveway for vehicle access between the alley and the new garage. The buyer would replace the current driveway with an addition to the house and landscaping, thereby preventing vehicle access to Matoush's property from N. Nevada Ave.
Thereafter, Matoush brought an action against the Lovingoods, Hayes, Martwick, and Wellensiek to enforce her right to use the easement as a right-of-way for vehicle access between her property and the alley.10 The defendants counterclaimed that use of the easement as a right-of-way was terminated by either abandonment or adverse possession. In the alternative, the defendants argued that use of the easement as a paved driveway for vehicle access between Matoush's property and the alley...
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