Turner v. Anderson, 17324

• Decision Date: 11 October 1954
• Docket Number: No. 17324,17324
• Parties: L. E. TURNER and Luther Turner, Plaintiffs in Error, v. Delia ANDERSON, Defendant in Error.
• Court: Colorado Supreme Court

Page 972

274 P.2d 972

130 Colo. 275

L. E. TURNER and Luther Turner, Plaintiffs in Error, v. Delia ANDERSON, Defendant in Error.

No. 17324.

Supreme Court of Colorado, en Banc.

Oct. 11, 1954.

James J. Patterson, Frank J. Reinhard, Jr., Golden, for plaintiffs in error.

F. Richard Hite, Denver, for defendant in error.

HOLLAND, Justice.

In July 1937, plaintiffs in error, the Turners, were the owners of some mountain property near highway No. 72 in Gilpin county, and conveyed an irregular small plot of ground to defendant in error Anderson. The particular area seems to be a semi-summer cabin location, although some of the properties are occupied throughout the winter. The deed of conveyance to defendant in error Anderson contains the following: 'The purchaser shall have a right to pass in and out through the L. E. Turner property to state highway No. 72, where designated by L. E. Turner.' It appears that at about the time of the conveyance, L. E. Turner designated what then was more or less a roadway across the Turner property connecting with the highway. The Turners, accustomed to spending some time, especially the winters, in California, saw no more of Mrs. Anderson for a period of four or five years. In the meantime Anderson had used another roadway for egress and ingress to the highway, to which reference is made as the 'old logging road.' At the time of the conveyance, no part of this logging road was on the Turners' property. It does not appear that the Turners at any time, or in any way, interfered with Anderson in the use of the original designated road referred to in this proceeding as road No. 1. The Turners acquired more property, and in 1949 erected a fence around all of their property, which obstructed a part of the so-called 'old logging road.'

Anderson instituted this action in September 1949, seeking an injunction against the Turners from obstructing in any manner plaintiff's right of way and easement, which she claimed by virtue of the deed as being twenty feet in width over this old logging road instead of road No. 1. A preliminary injunction was issued with bond fixed at $250 to secure defendants against any damage. Defendants filed motions to dismiss the complaint; for leave to file an amended answer; and to dissolve the injunction. Upon hearing, the motion to dismiss was denied; permission to file an amended answer as tendered was granted; and the preliminary injunction dissolved on February 2, 1953. On the latter date, defendants' amended answer was filed, in which it was specifically denied that plaintiff was the owner of an easement consisting of a right of way twenty feet in width, being ten feet on either side of the center line of the roadway known as 'old logging road.' For a third defense, the language used in the deed of conveyance between the parties was adopted as the measure of the rights of the parties therein, and that plaintiff is limited to such a right to pass in and out of defendants Turners' property where designated by L. E. Turner. Defendants affirmatively alleged that L. E. Turner, at the time of the conveyance, designated the location of the passage of plaintiff in and out of the Turner property and so informed plaintiff. Defendants made further claim and defense that injunction is not a proper remedy as an original and independent procedure for trial on a disputed title as to an alleged easement.

From the record certified to us it is difficult to state with accuracy the order of proceedings had herein, because it appears that on hearing there was a preliminary injunction issued on September 6, 1949, and over four years elapsed before the amended answer was filed. November 12, 1953, a contempt citation was issued against L. E. Turner commanding him to appear on the 5th day of December, 1953, to show cause why he should not be adjudged in contempt of court. The original preliminary injunction was dissolved on February 2, 1953. On the 7th day of March, 1953, there apparently was a hearing and on September 21, 1953, another injunctive order was issued nunc pro tunc as of March 7, 1953, and it appears that the matter finally came on for trial to the court on the 7th day of March, 1953. At this final hearing to the court, eighteen witnesses testified and much of the testimony is in hopeless conflict; however, we do not find sufficient testimony to support the finding of the court, which is as follows:

'That the easement for ingress and egress heretofore granted by defendant to plaintiff is and was designated as that road described in the complaint as the 'Old Logging...