Trueblood v. Pierce

• Decision Date: 07 April 1947
• Docket Number: 15777.
• Citation: 179 P.2d 671,116 Colo. 221
• Parties: TRUEBLOOD et al. v. PIERCE et al.
• Court: Colorado Supreme Court

179 P.2d 671

116 Colo. 221

TRUEBLOOD et al. v. PIERCE et al.

No. 15777.

Supreme Court of Colorado, en Banc.

April 7, 1947

Error to District Court, Larimer County; Claude C. Coffin, Judge.

Action by Charles A. Pierce and another against G. W. Trueblood and another to establish an easement for driveway purposes across defendants' property, quiet title thereto and require removal of an obstruction therefrom. Judgment for plaintiffs and defendants bring error.

Judgment affirmed.

Joint use of driveway situated on boundary line between adjoining lots by owners of each lot and their respective predecessors in title for more than 18 years established a joint and mutual driveway appurtenant to each lot and justified mandatory injunction requiring removal of obstruction placed in driveway by owners of one of the lots, though their predecessor in title did not assist or cooperate in laying out the driveway in the first instance.

H. W. Seaman and Conrad L. Ball, both of Loveland for plaintiffs in error.

Hatfield Chilson and Robert M. McCreary, both of Loveland, for defendants in error.

ALTER Justice.

Charles A. Pierce and Ethel B. Pierce, defendants in error, to whom we hereinafter refer as plaintiffs, brought an action in the district court against G. W. Trueblood and Ruth H. Trueblood plaintiffs in error, hereinafter designated as defendants for the purpose of having decreed an easement for driveway purposes over and across a portion of defendants' property, quieting the title thereof, and by mandatory injunction require defendants to remove an obstruction placed by them in the driveway, thereby preventing plaintiffs' use thereof. The cause was tried to the court without a jury and judgment entered in favor of plaintiffs against defendants decreeing the easement, quieting plaintiffs' title thereto, and requiring defendants to remove the obstruction placed thereon. Defendants are here seeking a reversal.

Plaintiffs in their complaint alleged that they and defendants are the owners of adjoining properties in Loveland, Colorado, the property of plaintiffs adjoining that of defendants on the east. They further alleged that they are the owners of an easement consisting of a driveway over and across the easterly portion of defendants' property leading to the public thoroughfare on the south. The driveway in question is located along the division line between the respective properties, approximately one half of the same being located upon plaintiffs' property and the other half upon that of defendants. Plaintiffs and their predecessors in title have, for more than 25 years, used the driveway in question, and for many years defendants and their predecessors have also used it jointly with plaintiffs. In August, 1945, defendants constructed a curb along the easterly boundary line of their property, which obstructs plaintiffs' use of the driveway. Plaintiffs, as stated, sought a decree establishing the easement for driveway purposes, quieting their title to the same, and also asked for a mandatory injunction requiring the removal of the curb erected by defendants.

Defendants by their answer admit all of the material allegations of the complaint except plaintiffs' ownership of the easement as alleged.

In none of the deeds to the properties now owned by either plaintiffs or defendants is there any reference to any easement or claim of easement or a driveway.

The evidence established, and the court found, that in 1916 plaintiffs' predecessor in title became the owner of the property now owned by plaintiffs upon which the present dwelling was then located, and the property owned by defendants was at that time vacant and unimproved. In 1918 plaintiffs' predecessor in interest laid out and utilized a passageway partly on and along the easterly boundary of the property now owned by defendants, and thereafter, in 1920, purchased the easterly five feet of a lot adjoining his on the west and belonging to the then owner of the property now occupied by defendants. At that time plaintiffs' predecessor in interest constructed a garage on the northwesterly corner of his property which could be conveniently reached and utilized only by use of the passageway as then laid out and as it now exists. The court further found that in 1924 the street abutting the lots of plaintiffs and defendants on the south was proved; that curbs and gutters were installed and at that time a driveway-opening or apron to the sidewalk was constructed, centered substantially upon the division line between plaintiffs' and defendants' properties. The driveway or apron thus constructed was continuously used by plaintiffs and defendants, as well as their predecessors in title, as a means of entrance to the driveway between their properties, and remained as such until enlarged by defendants extending the same on their property in 1945. In 1926 a residence was constructed on the property now owned by defendants and which was purchased by them in 1921. Plaintiffs acquired title to their property in August, 1928, and since that time have openly used, as the only reasonable convenient means of utilizing their garage, the driveway mentioned. Defendants and their predecessors in interest have used this driveway jointly with plaintiffs for a period of at least 18 years as a means of entrance to their garage.

At the trial the court made informal findings, which in part are as follows:

'The purchase of the five foot strip off of lot 20 in 1920, the building of the garage at or about that time, and placing of the same with respect to the driveway as thereafter used, the fact that that driveway was then and thereafter made the only means of convenient access to the garage, the placing of the opening or approach to the driveway, and its construction at the time the street was paved in 1924 corresponding to a driveway along the line to the two properties, very strongly indicates, and, in the absence of evidence to the contrary, warrants the finding that then adjoining owners intended to and did lay out a way on the dividing line, to be devoted to mutual use as a driveway or passageway, and accordingly such finding is made, and under the facts, a grant for joing or mutual driveway purposes should be presumed. And the continued uninterrupted use to that purpose by the owners of plaintiffs' property for more than twenty years, and by the owner of defendants' property since such use was needed and for more than eighteen years, has ripened into an easement over defendants' property appurtenant to the plaintiffs' property.

'As to the extent of such easement, the use during the periods above mentioned has been a single-track way, and because of the opening between curbs at the sidewalk line of the paved approach being nine feet, and the strip purchased being five feet wide, indicates, and the finding will be, that the driveway is not in excess of ten feet in width, five feet being on plaintiffs' property and five feet on defendants' property.'

It was adjudged and decreed that there was an easement across the portion of the east 10 feet of lot 20 as described for the maintenance and use of a joint driveway and that plaintiffs are the owners of an easement over and across that part of defendants' property occupied by said driveway; and defendants are the owners of an easement over and across that part of plaintiffs' property occupied by the joint driveway and that the easements for said joint and mutual driveway are appurtenant to the respective properties of plaintiffs and defendants, and the court further required the removal of the obstruction and enjoined further interference by defendants with plaintiffs' use of the driveway.

In the specification of points upon which defendants rely for a reversal they assert the insufficiency of the evidence: (1) To establish the use of the easement for a period of 18 years; (2) to establish any adverse use of the easement; (3) to establish a joint or mutual easement.

As we understand defendants' position, it is that, notwithstanding the fact that plaintiffs and their predecessors have used the driveway in question for more than 18 years, neither the plaintiffs nor their predecessor in interest having individually used the driveway for that period of time, no easement is acquired by prescription, and even though it should be determined that the use of plaintiffs and their predecessors might be considered as one under the doctrine of 'tacking,' in view of the circumstances here, it could not be regarded as an adverse possession. Further, that the evidence does not warrant the finding that there is a joint and mutual driveway because, in order to warrant such a determination, there must be either a proven mutual agreement for the construction of the driveway or it must have been constructed by an owner of the entire tract and subsequently divided or there must have arisen between adjoining owners a dispute as to the boundary line and an agreement that the center of the driveway was the true boundary line or the driveway must have been used by the public adversely for a sufficient period to establish a public way.

We shall first consider whether the doctrine of tacking, under the circumstances of this case, is applicable. Defendants say it is not, and to support their position they rely largely on the law announced in our decisions in Ward v. Farwell, 6 Colo. 66, and in Durkee v. Jones, 27 Colo. 159, 60 P. 618, both of which cases are concerned with easements in alley or roadways, and also on our decision in Evans v. Welch, 29 Colo. 355, 68 P. 776.

Our decision in Ward v. Farwell, supra, is clearly not in point. That was an action to enjoin defendants from obstructing an alleged public road. It is stated in the opinion:

'The plaint

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