McIntyre v. BOARD OF COUNTY COM'RS, 02SC803.

Decision Date15 March 2004
Docket NumberNo. 02SC803.,02SC803.
Citation86 P.3d 402
PartiesKim McINTYRE and Steve McIntyre, Petitioners, v. BOARD OF COUNTY COMMISSIONERS, GUNNISON COUNTY, Colorado; Sierra Minerals Corp. and Omya Inc., Respondents.
CourtColorado Supreme Court

Kim McIntyre, Steve McIntyre, Tempe, Arizona, Petitioners Appearing Pro Se.

David Baumgarten, Gunnison, Colorado, Attorney for Respondent.

Beth A. Dickhaus, Thomas J. Lyons, Denver, Colorado, Attorneys for Amicus Curiae, Colorado Counties, Inc.

Justice HOBBS delivered the opinion of the court.

We granted certiorari in this case to review the court of appeals decision in Board of County Comm'rs v. McIntyre, No. 01CA2408, 2002 WL 31112520 (Colo.App. Sept.19, 2002).1 The trial court ruled on summary judgment that Gunnison County had obtained a road by prescription across certain private lands pursuant to section 43-2-201(1)(c), 11 C.R.S. (2002). The court of appeals affirmed the trial court. We reverse. We hold that the county failed to meet the claim of right requirement of section 43-2-201(1)(c) for the establishment of a public road by prescription across the McIntyre lands.


The petitioners, Kim and Steve McIntyre (McIntyres) own six mining claims near the Town of Marble in Gunnison County. They purchased their property from L.E. Schooley and Associates (Schooley) in 1994. Schooley had acquired the property by virtue of a tax deed in 1960; there is no evidence in the record of a deed in the chain of title that contains a dedication, reservation, or exception for a public road across the McIntyre property.

The McIntyre property includes a portion of an old electric tramway route that the Colorado Yule Marble Company operated to haul marble to the Town of Marble from its quarry. The quarry adjoins the McIntyre land.

In 1941 the Marble Company ceased operations. Marble from the quarry was used in building the Lincoln Memorial and the Tomb of the Unknown Soldier, among other notable public buildings in the United States; so the quarry site has significant historical and tourist value to the Town of Marble and Gunnison County. The public has traversed the approximately three-plus mile route from the Town of Marble to the quarry site since the 1940s by four wheel drive vehicle and footpath. Only a footpath exists across the McIntyre property because of a steep gradient that veers away from Yule Creek, severe erosion on sections of the footpath, and marble spoil piles which block vehicle access across the McIntyre lands.

William Bush, a Schooley partner, testified that approximately six to eight people per week walked the former tramway route across the McIntyre property from the 1960s to the 1990s to access the quarry site and public lands for recreation. Bush built and maintained a fence across the former tramway route on the McIntyre property for a short time in the early to mid 1960s. Some of these people who walked across the property during the 1960s to the 1990s requested permission; some did not. When requested, Bush always granted permission. Bush testified that he never saw any member of the public use a vehicle to cross the property.

In 1986, Schooley gave written permission to the Colorado Department of Mined Land Reclamation to enter the property and build a boardwalk over a washed out section of the route as part of a state mined land reclamation safety project on the Colorado Yule Marble Company quarry site. This agreement expressly provided that the landowner waived no rights by granting access permission to the State.

In the 1990s, the Colorado Yule Marble Company reopened the quarry. Avoiding that portion of the impassable old tramway route across the McIntyre property, the Marble Company cut a new road to access the quarry from the vehicle-passable portion of the old tramway route. Concerned about liability arising from the deteriorating footpath and wastes that walkers left on their property, the McIntyres closed the footpath across their property in the mid-90s.

At present a graveled road from Marble ends in a parking lot, located off of the McIntyre property, from which persons can take a private tour to the quarry site on a trail or the road that the quarry operators installed off of the McIntyre property in the 1990s. Foot access to the quarry's vicinity is also available from the parking lot via Forest Service trails.

At no time during the prescriptive period from the 1960s to the 1990s the trial court found to exist in this case did Gunnison County include the footpath across the McIntyre property on its road and trail system, or perform any maintenance activity on the path. The uncontested evidence in the record, including testimony of Gunnison County officials, was that the County had never assumed "jurisdiction" over the trail on the McIntyre property during the prescriptive period.

However, when the McIntyres commenced excluding members of the public from their property, Gunnison County brought this action against them, seeking a declaratory judgment that the route across the McIntyre property is a public road pursuant to section 43-2-201(1)(c). Following evidentiary hearings, the trial court granted a preliminary injunction against the McIntyres in favor of the County, preventing them from barring members of the public from using the footpath.

The County amended its pleadings under C.R.C.P. 105 to quiet title against all property owners along the old tramway route from Marble. After further proceedings, the trial court entered a quiet title decree "for a public highway pursuant to C.R.S. 43-2-201(1)(c) dedicated to public uses under the jurisdiction of the Board of County Commissioners of the County of Gunnison, Colorado" for the entire length and width of the old tramway route, up to sixty feet in width. The court of appeals affirmed. No party to the quiet title action, other than the McIntyres, appears before us to challenge the quiet title decree.

Limiting our decision to the McIntyre property, we conclude that the trial court and court of appeals failed to properly apply the criteria of Board of County Comm'rs v. Flickinger, 687 P.2d 975 (Colo.1984), in considering whether a public road existed by prescription across the McIntyre property. Among other requirements, Flickinger requires the public entity to prove a claim of right to the public road. The facts of record on summary judgment do not support that Gunnison County took any overt action meeting the claim of right requirement to commence running of the prescriptive period for establishment of a public road on the McIntyre property under section 43-2-201(1)(c). Accordingly, the trial court and court of appeals erred in ruling that the footpath along the former tramway route across the McIntyre property became a public road by prescription.


We hold that the county failed to meet the claim of right requirement of section 43-2-201(1)(c) for the establishment of a public road by prescription across the McIntyre property.

In conducting our review in this case, we recognize that a court may enter summary judgment when there is no disputed issue of material fact and the moving party is entitled to judgment as a matter of law. We review de novo an order granting summary judgment. Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Bd., 901 P.2d 1251, 1256 (Colo.1995).

Our decision in this case reiterates that the claimant for a public road by prescription must demonstrate the following: (1) members of the public have used the road in a manner adverse to the landowner's interest and under a claim of right; (2) the public has used the road, continuously, for twenty years; and (3) the landowner had actual or implied knowledge of the public's use and made no objection to that use of the road.

We are concerned here with the claim of right requirement. To satisfy the claim of right requirement, the claimant must provide evidence that a reasonably diligent landowner would have had notice of the public's intent to create a public right of way. The evidence must include some overt act on the part of the public entity responsible for public roads in the jurisdiction sufficient to give notice of the public's claim of right. This notification to the landowners starts the prescriptive period; without such notice, the prescriptive period does not begin.

A. Private Prescription and Public Road Prescription Differentiated

The case before us commenced as an action against the McIntyres, then became a quiet title action between Gunnison County and all claimants pursuant to C.R.C.P. 105. This rule provides for complete adjudication of the rights of all parties who, when served, have the opportunity to adjudicate their claim of right to an interest in the real property. Board of County Comm'rs v. Timroth, 87 P.3d 102, 105 (Colo. 2004).

In the case before us, the trial court and the court of appeals ruled that twenty years of public use adverse to the property owner was itself sufficient to establish a public road by prescription under section 43-2-201(1)(c). These rulings make the requirements for private prescriptive rights and public prescriptive road rights the equivalent of each other. They are not.

In regard to private prescriptive rights, section 38-41-101(1), 10 C.R.S. (2003), provides that eighteen years of "adverse possession of any land shall be conclusive evidence of absolute ownership" in a case for recovery of title or possession by the prior owner of the real property. Section 38-41-103 provides, in addition, that a continuous claim of ownership under the color of a record conveyance or other instrument is "prima facie evidence of adverse possession" during the prescriptive period. Section 38-41-106 reduces the eighteen year period to seven years when the residence, occupancy, or possession of the adverse possessor is under color of title, in law or equity deducible of record, from the State of Colorado or the United States. Section 38-41-108 recognizes the...

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