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Supreme Court of Colorado • 2008

Matoush v. Lovingood

177 P.3d 1262

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Takeaway

In short, this case holds that an expressly granted but never-used easement is not extinguished by obstructive use until the holder needs, requests, and is denied the relevant use, because only then does the servient owner’s conduct become adverse.

Background

A 1901 warranty deed expressly reserved a perpetual ten-foot-wide right-of-way across what later became the Lovingoods’ and neighboring owners’ properties. The easement ran from Carol Matoush’s property to an alley and authorized sewer, water, and alley purposes. It was continuously used for underground sewer pipes, but the record did not establish that it had ever been used as a surface route between Matoush’s property and the alley. Since at least 1969, fences and landscaping had enclosed most of the easement area within the neighboring backyards. A gate was overgrown and later blocked by fences.

In 2003, while trying to sell her property, Matoush sought to use the easement as a paved driveway from the alley. The Lovingoods claimed that their long-maintained fences and occupation of the area had extinguished the surface right-of-way by adverse possession. The trial court ruled for Matoush. Although its discussion appeared to blend abandonment into adverse possession, it ultimately held that the easement had not been terminated and that a driveway use fell within its scope.

The court of appeals held that abandonment was a separate doctrine, not an element of adverse possession, and remanded for findings on whether the fences constituted adverse, open, and continuous use for the statutory period. Matoush sought review, arguing that for an expressly created but never-used easement, adverse possession cannot begin until the easement holder needs, demands, and is denied use of the easement.

Issues

Issue #1

Whether Colorado law permits an easement to be terminated by adverse possession, and what elements govern that claim.

Holding

Yes. An easement may be terminated, in whole or in part, by adverse possession if use of the easement area is adverse to the easement holder’s rights, open or notorious, and continuous without effective interruption for the eighteen-year statutory period.

Reasoning

Colorado’s adverse-possession statute applies to “any right or interest” in real property. Because an easement is a nonpossessory real-property interest, the statute encompasses a claim that adverse use has extinguished an easement, even though the court had previously addressed adverse possession primarily in the context of creating easements.

The court relied on the Restatement and Colorado prescription law to conclude that termination and creation of easements use parallel elements. Thus, the owner of land burdened by an easement must show adverse, open or notorious, and continuous use for the prescriptive period.

Abandonment is not an element of adverse possession. Abandonment focuses on whether the easement holder intended to relinquish the easement, while adverse possession focuses on whether the servient owner’s use of the easement area was sufficiently hostile to the easement holder’s rights. They are separate methods of terminating an easement.

Issue #2

When is a servient owner’s use sufficiently adverse to start the prescriptive period against an expressly created easement that has never been used for the particular purpose at issue?

Holding

For an expressly created easement that has never been used for the relevant purpose, the servient owner’s obstructive use is not adverse until the easement holder needs to use the easement, demands access, and is denied that access.

Reasoning

A servient owner ordinarily may use the burdened land in any manner consistent with the easement. Therefore, extinguishing an easement requires a stronger showing than merely occupying the easement area: the use must be incompatible or irreconcilable with the easement holder’s authorized use and must significantly interfere with the holder’s enjoyment so as to give notice that the easement is under threat.

Whether use is adverse depends on the circumstances, including whether and how the easement has been used. An owner of burdened land has a broader range of permitted uses when an easement is dormant, and the range is greatest where an expressly created easement has never been used. In that situation, the easement holder’s interest has not yet become functionally operative as to the unused purpose.

Adopting the rule articulated in Castle Associates, the court held that fencing or otherwise blocking an expressly created but never-used easement does not begin the limitations period before a need arises and the holder seeks, but is refused, access. This rule does not add a statutory element; it identifies when use becomes sufficiently incompatible to satisfy the existing adversity element.

The rule accords with several policies: servient owners retain broad rights to use land consistently with an unused easement; easements are not lost merely through nonuse; recorded easements give purchasers constructive notice; and holders of recorded rights need not initiate needless litigation or remove temporary obstacles simply to preserve a right whose use has not yet become necessary.

Issue #3

Whether the Lovingoods’ fences and backyard use extinguished Matoush’s surface right-of-way by adverse possession.

Holding

No. The fences were not adverse to Matoush’s surface right-of-way until 2003, when she first needed to use the easement for access to the alley; therefore, the eighteen-year period had not run.

Reasoning

The easement was expressly created by the 1901 warranty deed. Although it had been used for sewer pipes, that underground use did not establish use of the distinct surface right-of-way that the Lovingoods sought to extinguish. The relevant inquiry was whether the easement had ever been used for alley access.

The evidence established that the easement had not been used as a surface right-of-way since at least 1969, and no evidence showed that it had been used for that purpose between 1901 and 1969. The court deferred to the trial court’s fact findings because the Lovingoods did not challenge the evidentiary sufficiency of those findings.

Because the express surface easement had never been shown to have been used, the Castle Associates rule applied. Matoush did not need a surface route until the prospective 2003 sale and proposed driveway use. The Lovingoods’ prior fences therefore did not trigger the statutory period, and Matoush retained her right to use the easement as a right-of-way to the alley.

Concurrences

Justice Eid

Reasoning

Justice Eid agreed fully but wrote to emphasize that the majority was applying, rather than importing, a settled Colorado principle. A servient owner may use burdened property in any way not inconsistent with the easement holder’s interest, so ordinary possession or use cannot itself establish adversity.

In Justice Eid’s view, adversity must be evaluated against the particular interest claimed to be extinguished. If Matoush had developed the easement as a driveway, fences, grass, and a shed placed across it would plainly conflict with her access right. But because the easement remained undeveloped and the structures could be removed when use became necessary, they were not clearly inconsistent or incompatible with Matoush’s existing interest.

The authorities from other jurisdictions were useful not because Colorado was borrowing a foreign rule, but because those decisions applied the same familiar principle to undeveloped easements. The dispositive point was that the servient owner’s use must clearly conflict with the easement holder’s actual interest before it becomes adverse.

Dissents

Justice Coats

Reasoning

Justice Coats agreed that an easement is a real-property interest subject to loss through adverse possession, but he rejected the majority’s special accrual rule for expressly created, never-used easements. In his view, the majority effectively exempted a narrow class of easements from the ordinary adverse-possession doctrine without statutory authority.

Colorado’s statute bars an action to enforce a real-property interest unless brought within eighteen years after the right accrues. Justice Coats reasoned that a right to enforce an easement should accrue when the servient owner openly, notoriously, and incompatibly obstructs it—not only after the easement holder develops a subjective need, makes a demand, and is refused. The majority’s rule therefore altered the statute’s operation rather than merely explaining adversity.

Justice Coats also maintained that the New York authority on which the majority relied was narrower than the rule the court adopted. He read New York’s later decision as limiting the exception to unlocated easements, where uncertainty about the easement’s location may prevent the dominant owner from receiving meaningful notice of adverse use. Here, the easement’s location was definite, so that rationale did not apply.

The dissent warned that the majority’s categorical rule could require removal of even a permanent, longstanding structure if the easement holder demanded access within eighteen years after first deciding to use the easement. Whether that policy result is desirable, Justice Coats concluded, is a legislative question; judicial creation of the exception improperly usurped the General Assembly’s role.