Woodbridge Condo. Ass'n, Inc. v. Lo Viento Blanco, LLC

• Decision Date: 27 February 2020
• Docket Number: Court of Appeals No. 18CA2250
• Citation: 490 P.3d 598
• Court: Colorado Court of Appeals
• Parties: WOODBRIDGE CONDOMINIUM ASSOCIATION, INC., a Colorado nonprofit corporation, Plaintiff-Appellee, v. LO VIENTO BLANCO, LLC, an Arizona limited liability, Defendant-Appellant.

490 P.3d 598

WOODBRIDGE CONDOMINIUM ASSOCIATION, INC., a Colorado nonprofit corporation, Plaintiff-Appellee,

v.LO VIENTO BLANCO, LLC, an Arizona limited liability, Defendant-Appellant.

Court of Appeals No. 18CA2250

Colorado Court of Appeals, Division V.

Announced February 27, 2020

Peck Feigenbaum PC, Heather J. Manolakas, Lucas Peck, Denver, Colorado, for Plaintiff-Appellee

Law Office of James A. Knowlton, LLC, James A. Knowlton, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE J. JONES

¶ 1 Lo Viento Blanco, LLC (Lo Viento) owns an approximately half-acre (actually 0.452-acre) piece of property in Snowmass Village (the disputed parcel). Reversing the trial court, a prior division of this court held that Woodbridge Condominium Association, Inc. (Woodbridge) hadn't acquired the disputed parcel by adverse possession. Woodbridge Condo. Ass'n, Inc. v. Lo Viento Blanco, LLC , 2016 WL 2958766 (Colo. App. No. 15CA0596, May 19, 2016) (not published pursuant to C.A.R. 35(f) ) ( Woodbridge I ). On remand, however, the trial court found that Woodbridge is entitled to a prescriptive easement over most of the disputed parcel.

¶ 2 Lo Viento again appeals, contending that the trial court erred by finding a prescriptive easement and also by delineating the scope of the easement. To resolve Lo Viento's first contention, we must address, among other issues, whether the requirement that the use be "adverse" in the adverse possession context is coextensive with adverse use in the prescriptive easement context. We conclude that while those requirements overlap, that overlap isn't complete. As most relevant, we hold that while claim to exclusive ownership during the prescriptive period is required to show hostile adverse use when a party seeks to acquire title by adverse possession, it isn't required when a party seeks to acquire a prescriptive easement by adverse use. Rather, adverse use in the prescriptive easement context requires only a showing of use made without consent or other authorization of the landowner, such as would justify a tort action for interference with property rights. See Restatement (Third) of Property: Servitudes § 2.16 cmt. b (Am. Law Inst. 2000). And for this reason, a user's recognition of the landowner's title doesn't necessarily defeat a claim for a prescriptive easement based on adverse use.

¶ 3 The trial court properly applied these principles. And because (1) its underlying findings of historical fact enjoy record support; (2) Lo Viento's separate contention that its predecessor in title gave Woodbridge permission to use the disputed parcel fails; and (3) the other elements of a prescriptive easement claim aren't disputed, we affirm its conclusion that Woodbridge acquired a prescriptive easement over the disputed parcel. We also affirm the trial court's ruling as to the scope of that easement.

I. Background

A. Historical Facts

¶ 4 In the early to mid-1970s, L.R. Foy Construction Co., Inc. (Foy), owned and controlled by Lyle Foy, built several condominium buildings on a parcel that included, but was quite a bit larger than, the disputed parcel. None of those buildings are on the disputed parcel.¹ The disputed parcel is shown on the following diagram.

¶ 5 In late 1975, Foy conveyed the larger parcel — but not including the disputed parcel — to Woodbridge. (This conveyance failed to conform to the development plan approved by the county, which included the entirety of the larger parcel. So the conveyance may have been illegal because it subdivided the property without the county's approval.) Thereafter, and continuing through at least 2012, Woodbridge used the disputed parcel in a number of ways.

• Residents and guests skied across it to access a pedestrian bridge leading to a ski area.

• Woodbridge maintained sod previously installed by Foy for erosion control by regularly mowing, watering, fertilizing, and raking it.

• Residents and guests regularly used a gravel road running through the disputed parcel to access one of the buildings (Building 31) and to park on.

• Woodbridge maintenance personnel used the gravel road to access Building 31.

• Woodbridge maintained and put gravel on the gravel road.

• In 1992, and again in 1995, Woodbridge planted some pine trees on it.

• Also in 1995, Woodbridge used it as a staging area for a large construction project and built a berm just north of the gravel road.

• Woodbridge added a picnic table and split rail fence in 1997.

• Sometime in the late 1990s, Woodbridge planted aspen trees on it (some of which it later moved in 2004).

• In the early 2000s, Woodbridge put a chain across the gravel road to limit use of the gravel road to maintenance personnel.

• In 2004, Woodbridge installed signs on it that read "Woodbridge Condominiums," and Woodbridge installed lights and landscaping around the signs.

• Also in 2004, Woodbridge installed an in-ground sprinkler system to water the sod that covers most of the disputed parcel.

¶ 6 In sum, as the trial court said, "beginning in November 1975, Woodbridge maintained and used the [d]isputed [p]arcel as if it owned the parcel" — it used the property as an amenity and convenience for residents, guests, and maintenance personnel as if it were a part of the overall condominium development.

¶ 7 All this would seem, considered in a vacuum, to make out a case for adverse possession of the disputed parcel.² But, as the prior division determined, a letter from Woodbridge to Foy in 1992 offering to buy the disputed parcel doomed that idea.

¶ 8 In early 1991, Woodbridge sent two letters to Foy asking for permission to plant trees and shrubs on the disputed parcel. Foy responded with a letter offering to give such permission if Woodbridge would agree to certain conditions. (Foy made the offer on behalf of the entity to which it had conveyed the property in 1989, an entity controlled by Mr. Foy.) Woodbridge didn't agree to those conditions, but then offered to buy the disputed parcel from Foy in a June 1992 letter.³ Neither Foy nor the then-owner responded to that offer.

¶ 9 Woodbridge nonetheless continued to use the disputed parcel as if it owned it. No record owner of the disputed parcel made any use of it for any purpose from 1975 until 2011.

¶ 10 Lo Viento ultimately purchased the disputed parcel at auction from a bankruptcy estate in 2010 for $2,500. In 2011, Lo Viento presented plans to Woodbridge to build on the disputed parcel.⁴

B. This Litigation

¶ 11 On learning of Lo Viento's plans to build, Woodbridge told Lo Viento that it owned the disputed parcel by adverse possession. It followed up by filing this case in August 2012, claiming title to the disputed parcel by adverse possession. In the alternative, it sought a declaration that it has a prescriptive easement over the disputed parcel. Lo Viento counterclaimed to reform the deed it had received from the bankruptcy estate and to quiet title.

¶ 12 Following a bench trial, during which the court visited the disputed parcel, the court found that Woodbridge had acquired title by adverse possession, explaining its ruling in a commendably thorough written order. Lo Viento appealed, and, as noted, a division of this court reversed.

¶ 13 The division reasoned that Woodbridge's June 1992 letter offering to buy the disputed parcel was, in essence, an admission "that it did not claim superior title or have any right to or ownership of the disputed parcel." Because "hostility requires the adverse possessor to claim exclusive ownership of the property," the 1992 letter torpedoed Woodbridge's adverse possession claim by interrupting the continuity of Woodbridge's adverse possession before the passage of the statutory eighteen-year vesting period that began in 1975. Woodbridge I , slip op. at 7 (citing Anderson v. Cold Spring Tungsten, Inc. , 170 Colo. 7, 11, 458 P.2d 756, 758 (1969) ). The division also held that the June 1992 letter defeated any claim to adverse possession beginning in November 1993 (after the initial eighteen-year period beginning in 1975) because it showed that Woodbridge didn't believe it was the actual owner of the disputed parcel. Id. at 10 (citing § 38-41-101(3)(b)(II), C.R.S. 2019 ).⁵ So the division reversed the order quieting title in Woodbridge and remanded the case to the trial court to quiet title in Lo Viento "and to consider Woodbridge's easement claims." Id. at 11.

¶ 14 On remand, the parties agreed that the court (a different judge than the one who had presided at trial) would rule without taking additional evidence. (And Lo Viento argued that the division's previous decision controlled.) After considering the parties' post-remand arguments and the record, the trial court found that Woodbridge had proved its right to a prescriptive easement, explaining its reasoning in yet another thorough written order. After additional briefing, the court issued a third detailed written order setting forth the geographical bounds, permissible uses, and nature of the easement. Lo Viento appeals these last two orders, which collectively make up the court's final judgment.

II. Discussion

¶ 15 As noted, Lo Viento first challenges the trial court's finding that Woodbridge is entitled to an easement by prescription. Alternatively, it challenges the court's findings as to the scope of the easement. We consider, and reject, these challenges in turn.

A. The Existence of the Easement

¶ 16 In Colorado, "[a]n easement by prescription is established when the prescriptive use is: 1) open or notorious, 2) continued without effective interruption for the prescriptive period, and 3) the use was either a) adverse or b) pursuant to an attempted, but ineffective grant." Lobato v. Taylor , 71 P.3d 938, 950 (Colo. 2002) (citing Restatement (Third) of Property: Servitudes §§ 2.16, 2.17 ); accord LR Smith Invs., LLC v. Butler , 2014 COA 170, ¶ 14, 378 P.3d 743.

¶ 17 This case doesn't involve an attempted, but ineffective grant; Woodbridge's claim is based on adverse use. As to that element, Lo Viento argues that...