Scott v. Powers, 18595

• Decision Date: 13 July 1959
• Docket Number: No. 18595,18595
• Citation: 140 Colo. 14,342 P.2d 664
• Parties: Jess A. SCOTT and Freda B. Scott, Plaintiffs in Error, v. Edward J. POWERS, Defendant in Error.
• Court: Colorado Supreme Court

Page 664

342 P.2d 664

140 Colo. 14

Jess A. SCOTT and Freda B. Scott, Plaintiffs in Error, v. Edward J. POWERS, Defendant in Error.

No. 18595.

Supreme Court of Colorado, En Banc.

July 13, 1959.

Rehearing Denied Aug. 3, 1959.

Chester A. Bennett, Fort Collins, for plaintiff in error.

Ralph H. Coyte, Alden T. Hill, Fort Collins, for defendant in error.

KNAUSS, Chief Justice.

We will herein refer to the parties, plaintiffs or defendant, as they were aligned in the trial court, or by name.

Plaintiffs' complaint alleged that they purchased from Floyd E. Harris on August 30, 1937 a portion of the southeast quarter of the southeast quarter of Section 35, Twp. 8 N., R. 69 West of the 6th p. m. in Larimer County, Colorado; that at the time of purchase 'there was an established and used access right-of-way of State Highway 287 along and just south of the north line of said described land.' That on February 17, 1938 plaintiffs sold to Arthur Collamer and Frank E. Collamer a portion of said above described land by warranty deed which deed recited 'subject, however, to the rights-of-way for roads and ditches as now constructed; it being the intention hereof to exclude the county road from this conveyance.' It is then alleged that defendant had refused to allow plaintiffs access to the lands owned by them. Powers acquired title to his land from one Stern, who acquired title through Collamer. Plaintiffs' deed contained the identical 'subject' clause above quoted.

Plaintiffs prayed that the court adjudge that they owned a right-of-way over and through said tract of land and that defendant be enjoined from denying plaintiffs access to their property across defendant's land.

By answer defendant denied that any such access road ever existed. By way of cross-complaint defendant prayed for a decree quieting title in defendant as against 'any claimed right-of-way through defendant's property.' The allegations of the cross-complaint were put in issue by plaintiffs and the case proceeded to trial resulting in findings and judgment in favor of defendant and that 'plaintiffs have no right-of-way over and across' the property first above described. From this judgment plaintiffs bring the case here on writ of error.

To tersely state the issue here involved plaintiffs claim that an easement was reserved in their favor through the property now owned by defendant. It cannot be said that they had an easement in the property at the time it was sold to defendant's prodecessors in title. The record discloses that the east border line of the property conveyed to plaintiffs abutted the county road. There is no testimony in the record that any road was ever 'constructed' from the main highway. It is logical to inquire in view of the language employed, 'as constructed', where was the road which plaintiffs claim either by way of an easement or by adverse possession? It did not exist.

'A continued and uninterrupted use under an adverse use and claim of...