Simon v. Pettit

• Decision Date: 10 September 1984
• Docket Number: No. 82SC235,82SC235
• Citation: 687 P.2d 1299
• Parties: Joshua SIMON and Jeremy Simon by their next friend Karin Simon individually, Petitioners, v. James R. PETTIT and Robert O. Soleway, Respondents.
• Court: Colorado Supreme Court

Page 1299

687 P.2d 1299

Joshua SIMON and Jeremy Simon by their next friend Karin

Simon individually, Petitioners, v. James R. PETTIT and Robert O. Soleway, Respondents.

No. 82SC235.

Supreme Court of Colorado,

En Banc.

Sept. 10, 1984.

Peter Alan Shelley, Peter N. Simon, Boulder, for petitioners.

White & Steele, P.C., Denver, and John E. Clough, Santa Monica, Cal., for respondents.

ROVIRA, Justice.

We granted certiorari to review the decision of the court of appeals in Simon v. Pettit, 651 P.2d 418 (Colo.App.1982), reversing a ruling by the trial court that two footpaths across private property in Boulder had become public highways by prescription. ¹ The court of appeals held that footpaths are included within the definitions of "road" and "highway" but that the public did not acquire prescriptive rights because the use of the two footpaths was

permissive and not adverse. We affirm the court of appeals' decision on other grounds.

I.

Joshua and Jeremy Simon, plaintiffs, by their next friend, Karin Simon, brought an action in 1977 against James Pettit and Robert Soleway, defendants, to establish the existence of two public easements across a vacant parcel of land owned by the defendants in Boulder. The property is located in a residential area three blocks from the downtown Boulder Mall. It is unimproved, approximately 80' X 100' in size, and located on the side of a moderately steep hill. Traversing the property are two narrow but well-defined footpaths, one of which angles up the slope and connects with an alley at the northwest corner of the property. The alley then proceeds west to 15th Street. The other footpath angles down the slope to a point along Mapleton Avenue near the beginning of a sidewalk. Both of the footpaths are approximately eighteen inches wide and are covered with sandy soil. Their common origin is a footpath traversing the property directly east of the defendants' property. This footpath begins near 17th Street and runs parallel to Mapleton Avenue about twenty feet north of the street. Before reaching the eastern boundary of the defendants' property, it forks into the two footpaths at issue in this case. A diagram of the various properties and footpaths appears in the Appendix.

Before 1967, the defendants' property and the property directly to the east were owned by Michael Rinn. George Newton, the owner of a parcel of land north of the alley and northwest of the defendants' property, bought the entire Rinn property in 1967. In 1975, he sold the eastern portion of the Rinn property, including the former Rinn house, to Joseph and Caroline Fletcher. He then sold the western portion of the Rinn property to the defendants. The two footpaths were clearly visible at this time; in fact, aerial photographs introduced at trial revealed that the paths were worn and discernible as early as 1949. The plaintiffs, two neighborhood children who use the footpaths, called eight witnesses who testified about the use of the paths by children and adults as a shortcut to a nearby junior high school and its recreational facilities and as an alternative to walking or jogging along Mapleton Avenue. The period of time covered by the witnesses' testimony was from 1953 to the date of the trial in 1978. None of the defendants' predecessors ever interfered with or stated any objection to the use of the two footpaths.

The defendants were aware of the existence of the footpaths when they bought the western portion of the Rinn property in 1975. Their intention, nevertheless, was to construct a six-unit condominium building at that location. In 1976, they obtained a rezoning of the property and approval for the construction of a "Planned Unit Development" from the Boulder City Council. The existence and use of the footpaths was not brought to the council's attention when it made these decisions. In 1977, the plaintiffs brought this action, seeking to establish the existence of public easements along the two footpaths and to enjoin construction of the condominium building. In a pretrial ruling on the defendants' motion to dismiss, the trial court decided that section 43-2-201(1)(c), 17 C.R.S. (1973), which declares that roads used adversely for twenty years are public highways, was "the only method by which the public can acquire a prescriptive easement in Colorado." This statute, it concluded, "encompasses more than simply roads which are capable of supporting vehicular traffic." In its view, the plaintiffs stated a cause of action because "the term 'road' as used in [section] 43-2-201(1)(c) includes a footpath."

The case was tried to the court with a consent jury under C.R.C.P. 39(c). ² In a special verdict, the jury answered eight The Court ... finds that the present locations of the easements preclude any sort of development upon Defendants' land, and that the easement may be efficiently relocated and still allow for at least an equal easement of way across Defendants' land. The Court, therefore, will allow the public easements to be moved. To decide otherwise would subject Defendants' entire estate, not just the footpaths, to a servient status with respect to Plaintiffs' rights of way. A contrary result would mean that any undeveloped land that might be used by school children is in extreme danger of existing solely for the purpose of providing a short-cut to school. Such a result would be patently inequitable.

questions concerning each footpath. It found that each path had been used by the public for twenty consecutive years, that each had a definite and specific line during the twenty-year period, and that the use of each path was actual, visible, hostile, and under a claim of right. The jury further found that the use of the footpaths was known to the landowners and was with their implied permission. Their permission, however, had been indicated only by silent acquiescence, not by any affirmative act. Based on these findings, the trial court issued a ruling and order recognizing the two public easements across the defendants' property. It then decided that, in the exercise of its inherent equitable powers, the easements would be relocated along the boundary of the defendants' property so as not to preclude entirely the development of the land. The trial court stated:

Furthermore, the easement in issue is a public one. Public easements should not exist in derogation of public policy. Modern land use planning dictates the efficient use of resources. To require a developable plot of land to sit forever idle for the convenience of school children would place form over substance and hinder the rational process of progress in a growing community. In addition, the relocated easement would be maintained by Defendants. Such a right-of-way would be a great deal safer than the unkempt paths as they now exist.

The defendants submitted a plan to build approximately sixty steps along the eastern boundary of the property extending from Mapleton Avenue up the hill to the northern edge of the property. The trial court accepted the plan and entered its final order relocating the easements in July 1979. The plaintiffs appealed from the court's order denying their request for an injunction and relocating the easements. The defendants cross-appealed from the ruling that a footpath can be a road or highway and that the use of the footpaths in this case established public easements across their property.

The court of appeals reversed. Simon v. Pettit, 651 P.2d 418 (Colo.App.1982). It agreed that the definitions of "road" and "highway" were broad enough to include footpaths. However, it decided that the two footpaths had not become public highways because their use by the public had been permissive. In reaching this decision, the court of appeals acknowledged the presumption announced in Mahnke v. Coughenour, 170 Colo. 61, 458 P.2d 747 (1969), that the public's use of land for a right-of-way will be deemed adverse where such use is shown to have occurred for the prescribed period of time. However, it then recognized an exception to the basic presumption of adversity in cases where the land involved is vacant, unenclosed, and unoccupied. See Boullioun v. Constantine, 186 Ark. 625, 54 S.W.2d 986 (1932); Lieber v. People, 33 Colo. 493, 81 P. 270 (1905). According to the court:

"[W]here the land is vacant and unoccupied and remains free to public use and travel until circumstances induce the owner to enclose it, the mere travel across it, without objection from the owners, does not enable the public to acquire a public road or highway over the same. Such use by the public of vacant and unoccupied land by travel over it, even after the period of twenty years, is regarded merely as a permissive use."

Simon, 651 P.2d at 420 (quoting O'Connell v. Chicago Terminal Transfer Railroad Co., 184 Ill. 308, 56 N.E. 355, 357 (1900)). Since the parties had stipulated that the defendants' property was "vacant, undeveloped and unenclosed," the court of appeals concluded that the public's use of the footpaths was permissive and that, consequently, no public highway or road had been established.

II.

Section 43-2-201(1)(c), 17 C.R.S. (1973), provides: "(1) The following are declared to be public highways: ... (c) All roads over private lands that have been used adversely without interruption or objection on the part of the owners of such lands for twenty consecutive years...." This statute codifies the common law method by which the public can obtain title by adverse use. See Mahnke, 170 Colo. at 67, 458 P.2d at 750; People ex rel. Mayer v. San Luis Valley Land & Cattle Co., 90 Colo. 23, 5 P.2d 873 (1931). If the public uses a road adversely, under a claim of right, and without interruption for the statutory period of twenty years, and the landowner knows of but does not object to the use, the requirements of section 43-2-201(1)(c) are satisfied and the road assumes the character of a public highway. Board of County Commissioners v....