Westland Nursing Home, Inc. v. Benson, 73--061

• Decision Date: 02 January 1974
• Docket Number: No. 73--061,73--061
• Citation: 33 Colo.App. 245,517 P.2d 862
• Parties: WESTLAND NURSING HOME, INC., a Colorado corporation, and Tor Development Co., a Colorado corporation, Plaintiffs-Appellees, v. Harold E. BENSON and Joan Ruth Benson, Defendants-Appellants. . II
• Court: Colorado Court of Appeals

Page 862

517 P.2d 862

33 Colo.App. 245

WESTLAND NURSING HOME, INC., a Colorado corporation, and Tor Development Co., a Colorado corporation Plaintiffs-Appellees, v. Harold E. BENSON and Joan Ruth Benson, Defendants-Appellants.

No. 73--061.

Colorado Court of Appeals, Div. II.

Jan. 2, 1974.

Philip A. Rouse, Joseph Berenbaum, Denver, for plaintiffs-appellees.

Thomas J. Zavislan, Lakewood, for defendants-appellants.

COYTE, Judge.

Plaintiff Westland Nursing Home, Inc., (Westland) filed a complaint alleging that it is the owner of an easement for the purposes of ingress and egress along the northern boundary of defendants' property and seeking to enjoin defendants from interfering with its use of the easement. Defendants answered, denying the existence of an easement and alleging, by way of counterclaim, that plaintiff had forfeited the easement, if any, by misusing or over-burdening it. Also, Tor Development Co., record owner of part of the property, was joined as a plaintiff.

After trial to the court, the court found for Westland on all issues, entered the injunction sought by Westland, and dismissed defendants' counterclaims. Asserting several allegations of error, defendants appeal. We affirm the judgment of the trial court.

The property involved in this action consists of two adjoining five-acre tracts in Jefferson County, Colorado, (the East tract and the West tract). Harold Benson's parents (the Bensons) acquired the West tract in 1940 from the estate of one Oakley. In 1950, defendants purchased the northwest corner of the West tract, described as the West 125 feet of the North 100 feet of the West five-acre tract. The deed contained the following language:

'The parties of the first part reserve the right to use the existing roads on the north and west of said property for ingress and egress . . ..'

In 1960 the Bensons conveyed the balance of the West tract to certain third parties who later conveyed the property to Westland. Westland subsequently erected a nursing home on the West tract.

Strandbergs acquired the East tract from the estate of Oakley in approximately 1940. The Oakley home was situated on the East tract and the Strandbergs resided there until approximately 1959. Throughout this period, the Strandbergs utilized a road which had been established by the Oakleys along the northern boundary of the West tract for purposes of ingress and egress to their residence. In 1963, Tor Development Co. acquired the East tract from Anna Strandberg and subsequently conveyed that property by an unrecorded deed to Westland. The property has been rezoned for multi-family dwellings, and the house has been converted to a three-unit apartment building.

This dispute centers upon Westland's use of the road along the northern boundary of defendants' property. The trial court found that Westland has an easement for ingress and egress to the nursing home on the West tract since the easement reserved by the Bensons was transferred to it when it purchased their interest in the West tract. The trial court also found that Westland has an easement for purposes of ingress and egress to the house on the East tract because of a prescriptive easement acquired by its predecessors in title.

I.

Defendants contend that Westland acquired no rights under the easement reserved by the Bensons because: (1) the easement reserved was personal to them; (2) the language of the deed wherein the Bensons conveyed the balance of the West tract did not operate to convey the easement previously reserved by them; and (3) the easement was abandoned by Bensons.

Defendants maintain that the easement reserved by their grantors was personal to those grantors because Floyd Benson, one of the grantors, so testified. When an easement is created by grant or reservation in a deed, the determination of whether the easement is appurtenant to a certain parcel of property or personal to a certain individual depends upon the intention of the parties as ascertained by reading the words of the deed in light of the attendant circumstances. See Durkee v. Jones, 27 Colo. 159, 60 P. 618. Here, the trial court found that the easement reserved in the road for the purpose of ingress and egress was appurtenant to the West tract. The use of the term 'ingress and egress' without limitation suggests that the easement was designed to serve a specific piece of property and the circumstances under which the easement was created also compel that conclusion. Accordingly, we conclude that the trial court's ruling on this question was correct.

There is no merit in defendants' contention that the deed from the Bensons did not operate to convey the easement reserved by them. The deed in question described the property conveyed and includes the following statement:

'TOGETHER with all and singular the hereditaments and appurtenances thereto belonging . . ..'

The quoted language operated to convey to Westland's predecessors in title the appurtenant easement which the Bensons had reserved in their deed to defendants. Durkee v. Jones, Supra.

Defendants next contend that Westland is not entitled to utilize the easement reserved by the Bensons because they had adandoned that easement prior to the time that they conveyed the balance of the West tract to Westland's predecessors in title. Defendants argue that Bensons ceased using the road after the construction of Oak Street along the western boundary of the West tract. However, mere nonuse of an easement acquired by grant, however long continued, does not constitute an abandonment. See Fruit Growers Ditch & Reservoir Co. v. Donald, 96 Colo. 264, 41 P.2d 516. To establish an abandonment of an easement, the party asserting that the easement was abandoned must show affirmative acts manifesting an intention on the part of the owner of the dominant estate to abandon the easement. Rivera v. Queree, 145 Colo. 146, 358 P.2d 40. Here, the record shows that even after Oak Street was constructed the Bensons made occasional use of the road, and there is no evidence of any act manifesting an intent to abandon the easement. Thus, the trial court correctly found that the easement in the road was not abandoned.

II.

Defendants contend that the Strandbergs did not acquire a prescriptive easement in connection with the use of the road for ingress and egress to the East tract because such use was permissive. They cite Horne v. Hopper, 72 Colo. 434, 211 P. 665, for proposition that when the owner of the property and another person utilize the same way, such use by the second person is presumed to be permissive. The presumption of permissive use was invoked in Allen v. First National Bank, 120 Colo. 275, 208 P.2d 935, where the court said:

'The general rule seems to be that where one constructs a passageway over his own property, at his own expense, and thereafter it is utilized by others, their use is presumed to be permissive and a neighborly indulgence, and, being permissive in its inception, continues to be such until that permissive use is changed to the knowledge of the owner to an adverse use.'

The statement of the rule and the factual situations in which it has been invoked reveal that the presumption is limited to the case where the owner constructs the passageway as well as uses it. Here, the road was in existence when Floyd Benson purchased the property from the estate of Oakley. Therefore, we hold that defendants were not entitled to invoke a presumption of permissive use on the part of the Strandbergs.

On the other hand, the evidence establishes that the Strandbergs utilized the road for purposes of egress and ingress to their residence in excess of the prescribed period. In such cases, there exists a presumption that such use was adverse. Gleason v. Phillips, 172 Colo. 66...