Shively v. Board of County Com'rs of Eagle County

• Decision Date: 07 March 1966
• Docket Number: No. 21054,21054
• Citation: 159 Colo. 353,411 P.2d 782
• Parties: Kenneth SHIVELY, Raymond Bearden and Ellis Bearden, Plaintiffs in Error, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EAGLE, Defendants in Error.
• Court: Colorado Supreme Court

Page 782

411 P.2d 782

159 Colo. 353

Kenneth SHIVELY, Raymond Bearden and Ellis Bearden, Plaintiffs in Error, v. The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF EAGLE,

Defendants in Error.

No. 21054.

Supreme Court of Colorado, In Department.

March 7, 1966.

Robert L. McDougal, Denver, for plaintiffs in error.

Eugene D. Lorig, Eagle, J. Fred Schneider, Ronald Lee Cooke, Denver, for defendants in error.

DAY, Justice.

This writ of error challenges the validity and correctness of a decree of the trial court which ruled that a rugged mountain trial or roadway through the property of the plaintiffs in error is a public road as defined in C.R.S.1963, 120-1-1. We will refer to them as defendants--as they appeared in the trial court--or by name; Eagle County will be referred to as the County, and the County Commissioners as the Commissioners.

Involved herein is what one of the witnesses described as 'a typical country road.' It has a name--Squaw Creek Road. It is well defined and can be traversed at least part way by jeep in modern times; although previously it had been used by wagons, lumber trucks and by hunters and fishermen on horseback or on foot. It extends up the mountain terrain in a southerly direction from Federal Highway No. 6 in Eagle County generally along a mountain stream, Squaw Creek. The road passes adjacent to the Beardens' property which is north of Shively's. It then cuts through the Shively property which borders on the White River National Forest approximately four miles up the road from the highway. Shively and the Beardens traverse it to their respective properties. Beyond it affords access to two private holdings within the National Forest and to the forest itself.

Several years prior to the events which precipitated the present litigation, the road had deteriorated to such an extent that those using the road were, as a result, unwittingly trespassing and poaching upon Shively's property. Shively, therefore, with the assistance of one of the Beardens, erected a gate on the road at a point between the Beardens' and Shively's properties known as the Lew Fenno turnoff. This was done with notice to and permission of the Commissioners; although there was no formal resolution of the Commissioners to this effect introduced into evidence. Later, another gate was constructed at the north border of the Shively property. There is testimony that one of the Commissioners permitted the locking of these gates as the fall season approached so as to insure better control of access to the forest area.

Shortly thereafter, Shively took the position that no thoroughfare had been established on that portion of the road extending through his property; he therefore denied the public the right to pass through the gates he had erected. The Commissioners, on being apprised of this, instituted suit against Shively and the Beardens. In their complaint they sought a decree to quiet title to the road in the county and also prayed for a permanent injunction restraining Shively and the Beardens from blocking the road and denying the public use of and access through the road.

A trial was had to the court. At the conclusion of the suit the County abandoned its request for a quiet title decree and asked for and obtained a declaration that the roadway is a public road. The injunction as prayed for was also issued. The trial court in its findings of fact and conclusions of law found the road to be a public way and entered in the decree a description of the roadway as platted by a survey. It also issued a permanent injunction restraining the defendants from maintaining the locked gates and from barring the public access through the Shively property.

In their argument for reversal Shively and the Beardens assert: (1) that the evidence does not support the finding that a public road had been established; (2) that if there is such evidence it is clear that the County had abandoned the road; (3) that the judgment of the court is at variance with the issues framed by the pleadings, and (4) that Shively and the Beardens should have been granted a jury trial as they had demanded.

We take up first the matter of whether the evidence supports the court's decree. It is the contention of Shively that the use of the roadway was merely permissive; but even if adverse, it was not for a sufficient period of time because the elements had so changed the course of the road--even as late as 1959 and 1960--that the path followed by the public is different from and not the same as the course the road had previously taken.

We have read the entire record and find that it amply supports the findings of the trial court and also the conclusion that a public road had been established. There were witnesses who were able to testify as to their own use of the road and also of the use by others as early as 1920, extending continuously up to the time that the gates were first erected. Hunters, picknickers, and fishermen who entered the National Forest to the north gained access thereto over the road. Shively admitted that he annually observed hunters using the road and making their way into the forest. There was testimony that at various times the road was used for the hauling of...