Family v. Pomeroy

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                 May 27, 2021
                                2021COA73

No. 19CA2016, Amada Family v. Pomeroy — Real Property —

After-acquired Interests — Easements

     A division of the court of appeals considers whether Colorado’s

after-acquired interest statute, section 38-30-104, C.R.S. 2020,

abrogates the common law after-acquired interest doctrine, and if it

does not, whether easements may be transferred pursuant to

common law. Based on the plain language and legislative history of

the statute, the division concludes that the after-acquired interest

statute does not abrogate the common law doctrine and easements

are among the property interests that may be conveyed under it.

     The division further considers whether, in addition to

conferring a right of access, an easement that arises by necessity

may confer a right to install utility lines. The division determines

that, especially where property is conveyed for residential use, the
need for utilities is foreseeable and an easement by necessity can

include utility rights.
COLORADO COURT OF APPEALS                                      2021COA73


Court of Appeals No. 19CA2016
Montrose County District Court No. 18CV30063
Honorable Mary E. Deganhart, Judge


Amada Family Limited Partnership,

Plaintiff-Appellee and Cross-Appellant,

v.

Eugene K. Pomeroy and Michelle M. Pomeroy,

Defendants-Appellants and Cross-Appellees.


            JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
                AND CASE REMANDED WITH DIRECTIONS

                                 Division VI
                        Opinion by JUDGE RICHMAN
                       Lipinsky and Pawar, JJ., concur

                           Announced May 27, 2021


Brian Kidnay, PC, Brian Kidnay, Montrose, Colorado; Timmins LLC, Edward P.
Timmins, Amy K. Hunt, Denver, Colorado, for Plaintiff-Appellee and Cross-
Appellant

Masters Law Firm, P.C., David Masters, Montrose, Colorado, for Defendants-
Appellants and Cross-Appellees
¶1    Defendants, Eugene K. Pomeroy and Michelle M. Pomeroy (the

 Pomeroys), appeal a district court’s judgment in favor of plaintiff,

 Amada Family Limited Partnership (Amada). Amada cross-appeals

 the district court’s determination that it is not entitled to damages

 for trespass. We affirm the judgment insofar as the district court

 recognized easements in favor of Amada and the Pomeroys and

 established their scope and location. We reverse the judgment

 insofar as the district court determined that the Pomeroys could not

 have trespassed on Amada’s easement and denied Amada damages.

 We remand this case for a hearing on Amada’s trespass claim.

                           I.    Background

¶2    Through a series of transactions with Michael and Virginia

 McGee (the McGees), Amada purchased two parcels of land near

 Montrose, Colorado, referred to as Parcel A and Parcel D. Because

 the land to the east of Parcels A and D is impassable, these parcels

 lack any feasible means of ingress and egress except across two

 parcels now owned by the Pomeroys, referred to as Parcel B and

 Parcel C. The four parcels are located as shown below:




                                    1
¶3    Amada asserts that it owns an express access and utility

 easement over Parcels B and C in favor of Parcel A and an implied

 access and utility easement over Parcels B and C in favor of Parcel

 D. When these easements are pieced together, they provide Amada

 access to and from Uncompahgre Road, the public road to the west

 of the four parcels, and permit it to develop its land for residential

 use. The Pomeroys dispute Amada’s easement claims. They

 concede only that Amada has an express access and utility

 easement over Parcel B (but not over Parcel C) in favor of Parcel A.

 To resolve the issues raised, we must examine the history of Parcels

 A through D.




                                    2
              A.   Transactional and Procedural History

¶4    The McGees acquired Parcels A and B in 2003. In connection

 with the sale, they received a right-of-way permit (the permit) from

 the federal government, which owned Parcels C and D at the time.

 The permit, issued by the Bureau of Land Management (BLM),

 allowed the McGees to enter and exit their property on an access

 road (the access road) that began at Uncompahgre Road, traveled

 north through Parcel B to Parcel C, then turned south, reentering

 Parcel B near the McGees’ residence.

¶5    In 2006, the McGees decided to sell Parcel A. To facilitate the

 sale, they procured an amendment to the permit. The amendment

 allowed the owner of Parcel A to create a new “spur” road north of

 the existing access road. The spur road was intended to permit the

 owner of Parcel A to access that parcel without driving near the

 McGees’ residence on Parcel B.

¶6    In September 2007, by warranty deed (the 2007 deed), the

 McGees sold Parcel A to Amada. The deed granted Amada an

 easement (the 2007 easement) as follows:

           Grantor hereby grants to Grantee a 50 foot
           non-exclusive easement for ingress, egress and
           utilities, extending by the most direct and


                                   3
             drivable route to the Property from
             Uncompahgre Road. This grant of [a]
             non-exclusive easement shall include the
             ground currently used and permitted for
             access under a permit issued by the Bureau of
             Land Management (BLM), if and when Grantor
             or its successors shall acquire title to said
             ground. It is mutually understood that no
             present Grant of [an] easement can be made
             across ground not currently owned by Grantor
             and that Grantor shall have no duty to provide
             alternative access while Grantee has legal
             access under said permit from the BLM. . . .

             Grantor and/or Grantor’s heirs and/or assigns
             shall allow a 50 foot easement for ingress,
             egress and utilities to the benefit of the
             Grantee or Grantee’s heirs and/or assigns in
             the event Grantor acquires property from the
             Government that Grantees[’] and Grantors[’]
             current road is on that goes between
             Uncompahgre Road and Grantees[’] and
             Grantors[’] property.

 (Emphasis added.) Thereafter, Amada used the existing access

 road to access Parcel A as specified in the 2007 deed.

¶7    In December 2012, the federal government conveyed Parcels C

 and D to the McGees. Thereafter, when Virginia McGee wanted to

 access Parcel D, she generally crossed Parcels B and C on the

 access road driving an all-terrain vehicle. Then, she crossed Parcel

 A with Amada’s permission, using a trail on Parcel A to drive to

 Parcel D.


                                   4
¶8     In June 2014, the McGees sold Parcel D to Amada. According

  to Mark Covington, the agent who assisted the parties in

  negotiating the sale of Parcel A and Parcel D, the parties understood

  that the 2007 easement would extend to Parcel D because the

  easement was already being used to access Parcel A and the “title

  didn’t show lack of a right-of-access, so we went with that.” The

  deed to Parcel D did not mention the 2007 easement, but Covington

  testified that the parties expected Amada to use the access road to

  get to Parcel D.

¶9     In July 2014, the McGees sold Parcels B and C to the

  Pomeroys. After the sale, Amada continued to use the access road

  as it had before.

¶ 10   In 2017, Amada built the planned spur road and began using

  it to access its parcels. The spur road connects to the access road

  on Parcel C and passes through an elk fence on Parcel C that was

  installed, without the government’s permission, by a person who

  owned Parcels A and B before the McGees owned them. To clarify

  the issues surrounding the spur road, we have drawn lines on the

  parcel map that roughly illustrate the manner in which the access




                                   5
  road (the solid line) and the spur road (the dotted line) intersect

  with a portion of the elk fence (the dashed line).




¶ 11   After Amada built the spur road, and without Amada’s

  consent, the Pomeroys placed a gate across the spur road where it

  runs through a hole Amada made in the elk fence. The Pomeroys

  also locked a gate at the entrance to the access road, effectively

  denying Amada access to its parcels. They subsequently took the

  position that Amada held no easements of any kind. In response,

  Amada filed an action for declaratory judgment and trespass.

¶ 12   The Pomeroys counterclaimed seeking, among other things, a

  declaratory judgment in their favor as to Amada’s claimed

  easements and legal recognition of an easement on Parcel A in favor

  of Parcels B and C. The Pomeroys argued that an easement on

                                     6
  Parcel A is necessary because it allows them to access a headgate,

  located on Parcel A, that is essential to their irrigation system (the

  headgate easement).

           B.    Easements Over Parcels B and C to Parcel A

¶ 13   Before trial, Amada filed a motion for partial summary

  judgment. It argued that, under the 2007 deed, it owns an express

  access and utility easement over Parcel B in favor of Parcel A. It

  further argued that under the after-acquired interest statute, see

  § 38-30-104, C.R.S. 2020, as applied to the 2007 deed, when the

  McGees acquired Parcel C in 2012, Amada acquired an express

  easement over Parcel C in favor of Parcel A. Finally, Amada

  asserted that it owns an implied access and utility easement across

  Parcels B and C in favor of Parcel D based on necessity and the

  McGees’ prior use of the access road to reach Parcel D.1

¶ 14   In a thorough written order, the district court concluded that

  when the McGees sold Parcel A to Amada in 2007, Amada obtained




  1 Amada additionally claimed, in the alternative, an implied
  easement by pre-existing use over Parcels B and C in favor of Parcel
  A. The district court denied this claim and Amada does not appeal
  this portion of the judgment. Therefore, we do not address it.

                                     7
  an express access and utility easement over Parcel B in favor of

  Parcel A. It further concluded that, in 2012, under the common law

  after-acquired interest doctrine, Amada obtained an express access

  and utility easement over Parcel C in favor of Parcel A. However,

  genuine issues of material fact remained with respect to the implied

  easement over Parcels B and C in favor of Parcel D, and the court

  declined to recognize the easement on summary judgment.

           C.    Easements Over Parcels B and C to Parcel D

¶ 15   The parties proceeded to a bench trial regarding the existence

  of an implied easement in favor of Parcel D. At trial, the court also

  considered whether the Pomeroys committed trespass by, among

  other conduct, gating the spur road at the elk fence and locking a

  gate at the entrance to the access road. In addition, the parties

  asked the court to define the scope and location of any easements

  recognized or established.

¶ 16   In a written order, the district court concluded that Amada

  holds an implied access easement over Parcels B and C in favor of

  Parcel D based on the McGees’ prior use, and an implied easement

  by necessity, for access and utilities, over Parcels B and C in favor




                                     8
  of Parcel D. The court also prohibited the Pomeroys from gating the

  spur road at the elk fence and it denied Amada’s trespass claim.

          D.    Easement Over Parcel A from Parcels B and C

¶ 17   In addition, the district court considered the Pomeroys’ claim

  to the headgate easement. Amada conceded the existence of the

  easement but expressed concern about its location and width. The

  court’s trial order recognized an eight-foot-wide easement over

  Parcel A in favor of Parcels B and C.

¶ 18   After trial, the Pomeroys filed a C.R.C.P. 59 motion to amend

  the judgment, asking the district court to make the headgate

  easement wider and to allow a gate on the spur road at the elk

  fence. The court denied the motion.

                          E.   Issues Appealed

¶ 19   On appeal, the Pomeroys contend that the district court erred

  by (1) granting an express easement over Parcel C in favor of Parcel

  A; (2) granting an implied easement over Parcels B and C in favor of

  Parcel D; (3) requiring removal of the gate on the spur road; and (4)

  denying their Rule 59 motion to widen the headgate easement. On

  cross-appeal, Amada contends that the court erred by declining to

  award damages for trespass. We address each contention in turn.


                                    9
   II.   The Court Properly Recognized an Easement Over Parcel C in
                              Favor of Parcel A

¶ 20     As noted above, the express easement over Parcel C in favor of

  Parcel A was recognized on summary judgment. We review de novo

  a district court’s grant of summary judgment. Wallman v. Kelley,

  

, 331 (Colo. App. 1998). To prevail on such a motion,

  the moving party must demonstrate that there are no genuine

  issues of material fact and the movant is entitled judgment as a

  matter of law. 

.

¶ 21     There are no genuine issues of material fact regarding Amada’s

  claim to an express easement over Parcel C in favor of Parcel A

  because the existence of the easement hinges on the 2007 deed’s

  granting language and the McGees’ undisputed purchase of Parcel

  C in 2012. Premier Bank v. Bd. of Cnty. Comm’rs, 

,

  577-78 (Colo. App. 2009) (stating that interpretation of a deed is a

  question of law and the granting clause controls the nature of the

  interest conveyed).

¶ 22     However, the parties disagree as to what law applies. The

  district court relied exclusively on the common law after-acquired

  interest doctrine. The Pomeroys contend that the court erred in



                                    10
  this regard, urging that the after-acquired interest statute

  abrogated the common law doctrine. They further argue that, even

  if the common law doctrine survived enactment of the statute, it

  does not support Amada’s claim.

          A.   The Statute Did Not Abrogate the Common Law

¶ 23   The parties have cited no case, and we have found none, in

  which a Colorado court expressly decided whether Colorado’s

  after-acquired interest statute abrogates the common law doctrine.2

  To the extent that Colorado courts have addressed this issue, they

  have noted that the statute is a codification of the common law

  doctrine, which is generally stated as follows: “Where one conveys

  lands with warranty, but without title, and afterwards acquires one,

  his first deed works an estoppel, and passes an estate to the

  grantee the instant the grantor acquires his title.” Phillippi v. Leet,

  

, 251-52, 

, 541 (1893) (quoting 3 Emory




  2 This common law principle is also sometimes referred to as
  “estoppel by deed.” Shaw v. Profitt, 

, 1095-96
  (Or. 1910). For ease of reference, and to ensure linguistic
  consistency with existing case law, we will use the term
  “after-acquired interest” doctrine. See Premier Bank v. Bd. of Cnty.
  Comm’rs, 

, 576 (Colo. App. 2009) (referring to the
  “after-acquired interest statute”).

                                     11
  Washburn, Washburn on Real Property 118 (4th ed. 1876)); see also

  Premier Bank, 

. This doctrine serves to bind the

  grantor to the terms of the purported conveyance, including any

  warranties made, under principles of estoppel. Premier Bank, 

; Shaw v. Profitt, 

, 1092 (Or. 1910) (noting

  that this doctrine is grounded in equity, which will grant relief by

  estoppel when there is intentional or unintentional fraud).

¶ 24   Thus, Colorado’s after-acquired interest statute states that

             [i]f any person sells and conveys to another by
             deed or conveyance, purporting to convey an
             estate in fee simple absolute, any tract of land
             or real estate lying and being in this state, not
             being possessed of the legal estate or interest
             therein at the time of the sale and conveyance
             and, after such sale and conveyance, the
             vendor becomes possessed of and confirmed in
             the legal estate of the land or real estate so
             sold and conveyed, it shall be taken and held
             to be in trust and for the use of the grantee or
             vendee, and said conveyance shall be held and
             taken, and shall be as valid as if the grantor or
             vendor had the legal estate or interest at the
             time of said sale or conveyance.

  § 38-30-104.

¶ 25   One notable difference between the statute and the common

  law doctrine is that the doctrine applies “[w]here one conveys lands

  with warranty, but without title,” Phillippi, 19 Colo. at 251-52, 

  at 541 (emphasis added) (quoting Washburn at 118), while the

  statute applies where one purports to convey “an estate in fee

  simple absolute,” § 38-30-104 (emphasis added).

¶ 26   According to the Pomeroys, this difference in wording indicates

  that a grantee is entitled to an after-acquired interest only if the

  grantor originally conveyed the subject property in fee simple

  absolute. They further argue that an easement is not an estate in

  “land or real estate” that may be conveyed in fee. § 38-30-104.

  Rather, it is a “nonpossessory property right to enter and use land

  in the possession of another.” Matoush v. Lovingood, 

, 1265 (Colo. 2008) (citation omitted). Therefore, the argument

  goes, easements cannot be conveyed in fee under the statute and

  they cannot be conveyed as after-acquired property interests under

  the common law, which has been abrogated.3 For three reasons, we

  are not persuaded.




  3 We need not decide whether the after-acquired interest statute
  applies to easements incorporated in a fee simple deed. The district
  court relied on the common law doctrine, and the parties made
  arguments about its continued viability. Therefore, the common
  law issue is squarely before us.

                                     13
¶ 27   First, when interpreting a statute, our primary goal is to give

  effect to the legislative intent. Premier Bank, 

. We

  therefore read statutory words or phrases according to their plain

  meanings, being careful not to construe them in a manner that

  unjustifiably enlarges or diminishes their import. Robbins v.

  People, 

, 387-88 (Colo. 2005). This rule informs a

  related principle: “[A] statute may not be construed to abrogate the

  common law unless such abrogation was clearly the intent of the

  [G]eneral [A]ssembly.” 

 To abrogate the common law, a statute

  must expressly state the intention to do so or must do so by

  necessary implication. City of Colorado Springs v. White, 

, 1055 (Colo. 1988).

¶ 28   Our review of the plain language of the statute reveals that it

  expressly provides a statutory remedy only for parties who have

  received a defective conveyance in fee simple absolute. However, it

  is silent regarding any intent to abrogate the common law. The

  statute’s express provision of a remedy to cure defects in fee simple

  estates does not preclude the survival of common law remedies. 

  (“A statute is merely cumulative of the common law if the legislature

  intended not to interfere with preexisting rights, but to give


                                    14
  additional relief.”); see also 31 C.J.S. Estoppel § 26 (2021) (noting

  that a statute providing for transfer of after-acquired title in fee

  simple absolute “does not limit the application of the rule estopping

  a grantor to assert an after-acquired title to grants falling within the

  provisions of the statute, and, notwithstanding the statute, such an

  estoppel may arise from covenants of warranty contained in other

  grants.”) (footnote omitted). In our view, the General Assembly has

  expressed no clear intent to abrogate the common law.

¶ 29   Second, the legislative history of section 38-30-104 indicates

  that it was enacted to clarify an ongoing debate over which

  warranties are impliedly included in particular kinds of deeds.

  Colorado first enacted the after-acquired interest statute as a

  territorial ordinance in 1861. See Premier Bank, 

.

  It has not been amended since that time. In 1868, when the

  ordinance was first included in a compilation of Colorado statutes,

  it appeared with a footnote referencing Illinois law. See R.S. 1868,

  Ch. 17, § 4. As is the case with many of our statutes, it appears

  that Colorado’s after-acquired interest statute was patterned after a

  statute enacted earlier in Illinois. When Colorado adopts a statute

  from another state and, at the time of enactment, it has been


                                     15
  construed by an appellate court of that state, we may presume our

  legislature intended the statute to be construed in a similar

  manner. Peters v. Smuggler-Durant Mining Corp., 

, 578

  (Colo. 1997); Brown v. Davis, 

, 114, 

, 328

  (1938).

¶ 30   In Frink v. Darst, 

, 309-10 (1853), the Supreme

  Court of Illinois explained the rationale behind the Illinois statute’s

  exclusive application to estates in fee simple absolute. According to

  the court, the “fee simple absolute” language was included to

  distinguish the legal effect of deeds conveying fee simple title, which

  indefeasibly vest the entire estate in the grantee, from the legal

  effect of quitclaim deeds, which convey only the grantor’s current

  interest and necessarily exclude transfer of subsequently acquired

  interests. Id.; see Tuttle v. Burrows, 

, 1316 (Colo.

  App. 1992) (holding that a quitclaim deed does not convey property

  rights that vest after conveyance).

¶ 31   Quoting language from a Missouri case interpreting a

  “precisely similar” statute, the Illinois court explained,

             our statute was intended to settle a question
             which had been much discussed, and about
             which there was certainly great conflict of


                                     16
             opinion; whether a general warranty would
             operate to transfer a subsequently acquired
             legal title. It undoubtedly settles this question
             in the affirmative, and, I think, it goes
             further. . . . It does not limit its operation to
             deeds containing covenants of general
             warranty, but it extends to every deed which
             purports to convey a fee simple absolute,
             whether it contains a general warranty or not.4

  Frink, 14 Ill. at 309-10 (quoting Bogy v. Shoab, 

, 381

  (1850)).

¶ 32   Thus, when Colorado’s legislative body first adopted this

  statute, it did so with an understanding that the “fee simple

  absolute” language was meant to remove lingering uncertainty

  regarding whether a deed conveying an estate in fee simple absolute

  impliedly warranted that the estate was indefeasibly vested, even

  against grantors claiming after-acquired interests. Conversely, this

  same wording was intended to clarify that quitclaim deeds contain

  no implied warranties and do not convey after-acquired interests

  unless express warranties are made.




  4 A general warranty is “[a] warranty against the claims of all
  persons.” Black’s Law Dictionary (11th ed. 2019). Thus, it includes
  the grantor.

                                    17
¶ 33   Given this history, we do not construe the statute as a

  limitation on common law remedies but as an answer to

  uncertainties surrounding the necessity of express warranties. See

  Robben v. Obering, 

, 384 (7th Cir. 1960) (concluding

  that the Illinois statute did not abrogate the common law but was

  intended to remove “uncertainty which may have existed as to

  whether an express warranty was required to invoke the doctrine of

  after-acquired title”). In fact, after passage of the statute, Illinois

  courts continued to enforce the common law doctrine that deeds

  expressly warranting title, whether they grant fee simple estates or

  not, are effective to transfer after-acquired interests. Bennett v.

  Waller, 

 (1859) (noting that, although the statute did not

  apply to a particular deed, after-acquired title passed under an

  express covenant in the deed); Phelps v. Kellogg, 

, 137

  (1853) (concluding that, under equitable principles, and due to an

  express covenant, an after-acquired property interest was

  transferred by quitclaim deed); see also Aure v. Mackoff, 

, 812 (N.D. 1958) (noting that common law “estoppel by deed”

  principles were applicable to a quitclaim deed that warranted title




                                      18
  because the doctrine “is not limited to cases falling within our

  statutory provisions”).

¶ 34    Third, several Colorado cases impliedly acknowledge the

  continued viability of the common law doctrine. See Phillippi, 19

  Colo. at 252, 35 P. at 541-42 (recognizing an exception to the

  statute based on common law); Colo. Trout Fisheries v. Welfenberg,

  

, 594, 

, 18 (1928) (noting that the

  after-acquired interest statute is “merely a legislative codification of

  the general rule and in harmony with the same”) (emphasis added);

  Bessemer Irrigating Ditch Co. v. Woolley, 

, 445-46, 

, 1055 (Colo. 1904) (discussing whether a habendum clause

  purporting to confirm in the grantee any estate specifically granted

  “which the grantor might thereafter acquire” can transfer

  after-acquired property apart from statutory protections).

¶ 35    For these reasons, we conclude that section 38-30-104 does

  not abrogate the common law.

   B.    The Claimed Easement Was Transferred Under the Common
                              Law Doctrine

¶ 36    Having determined that the common law doctrine remains

  viable, we must now consider a second question: whether the



                                     19
  easement claimed by Amada is subject to post-conveyance transfer

  under common law.

¶ 37   As noted above, among other possible methods, transfer of

  after-acquired property may occur under an implied warranty (as

  provided in the statute, for example). It may also be effected

  through an express covenant in a contract or instrument of

  conveyance. Lobato v. Taylor, 

, 950 (Colo. 2002);

  Phelps, 15 Ill. at 137; Bennett, 23 Ill. at 97. In this case, we need

  not concern ourselves with implied warranties because the 2007

  deed expressly promises the transfer of an after-acquired easement

  over Parcel C. Therefore, we need only determine the enforceability

  of the express covenant.

¶ 38   As we explained, supra Part II.A n.2, the after-acquired

  interest doctrine rests on principles of estoppel and is sometimes

  called “estoppel by deed.” The doctrine “prevents a party to a deed

  from denying anything recited in that deed if the party has induced

  another to accept or act under the deed.” Estoppel By Deed, Black’s

  Law Dictionary (11th ed. 2019). It serves to prevent fraud and

  honors the parties’ intentions by defining their obligations

  according to the terms of the challenged instrument. See Int’l Tr.


                                    20
  Co. v. Palisade Light, Heat & Power Co., 

, 401-02, 

, 1003 (1916); Gyra v. Windler, 

, 369-70, 

, 37 (1907); Shaw, 110 P. at 1094. The doctrine may be used to

  enforce any covenant in a deed that sets forth the parties’

  obligations. Int’l Tr., 60 Colo. at 401-02, 153 P. at 1003.

¶ 39   As the district court noted, courts in other states have

  concluded that easements may be transferred as after-acquired

  property under principles of estoppel or estoppel by deed. Noronha

  v. Stewart, 

, 96 (Ct. App. 1988) (noting that a

  grantor that purports to convey any property interest, including oral

  easements, is estopped to deny its transfer); Arnold Indus., Inc. v.

  Love, 

, 726-27 (Utah 2002) (“To allow a grantor to deny

  the terms of its conveyance after acquiring title by repudiating an

  easement originally intended to be granted would be an invitation to

  fraud and would contravene the central purpose of the equitable

  doctrine of estoppel by deed.”); see also Sprinkle v. Am. Mobilephone

  Paging, Inc., 

, 1356-57 (Ala. 1988) (concluding that

  the defendant grantor was bound to his grant of an easement under

  the after-acquired interest doctrine because this result honored the

  intent of the parties); Spencer v. Wiegert, 

, 226 (Fla.


                                    21
  Dist. Ct. App. 1959) (“Easements constitute property within the rule

  of estoppel as to after-acquired property.”).

¶ 40   Nevertheless, the Pomeroys insist that Noronha and Arnold, on

  which the district court relied, do not support Amada’s claim

  because these cases state (or imply) that, to proceed under a theory

  of estoppel, a grantee must have reasonably relied on a grantor’s

  representation that he or she owned the after-acquired property.5




  5 Amada contends that we should not consider this issue because
  the Pomeroys did not preserve it. We disagree. The Pomeroys had
  no opportunity to raise the issue because Amada did not make
  arguments based on the common law doctrine until it replied to the
  Pomeroys’ response to its motion for summary judgment. Although
  we normally do not consider unpreserved issues in civil cases,
  Grant Bros. Ranch, LLC v. Antero Res. Piceance Corp., 

, ¶ 11, here, we elect to do so. The district court’s ruling was
  based on common law. Although the Pomeroys did not make these
  arguments below, the court had an opportunity to rule on the
  applicability of the common law doctrine. 

 Further, principles of
  judicial economy and fairness weigh in favor of granting review.
  Flagstaff Enter. Constr., Inc. v. Snow, 

, 1185 (Colo.
  App. 1995) (noting the unfairness of making a new argument in a
  reply brief in the district court); Farmer v. Colo. Parks & Wildlife
  Comm’n, 

, ¶ 19 (stating that court has discretion to
  review unpreserved issues of law where they have been fully
  briefed); see also Rinker v. Colina-Lee, 

, ¶¶ 24-26
  (holding that, where a trial court rules on an issue without giving all
  parties an opportunity to be heard, the merits of the ruling are
  subject to appellate review even in the absence of a timely
  objection).

                                    22
  Logically, a grantee cannot rely on this representation when the

  grantee had notice that, at the time of the conveyance, the grantor’s

  title was defective or nonexistent. Noronha, 245 Cal. Rptr. at 97

  (noting that estoppel does not apply in favor of a grantee who has

  notice that the grantor does not own the property conveyed); Arnold,

  63 P.3d at 726-27 (considering whether a grantee’s reliance was

  reasonable when the defective grant was a matter of public record).

¶ 41   It is true that a party generally has no right to invoke

  principles of estoppel unless that party reasonably relied on the

  grantor’s representation. See Lobato, 71 P.3d at 950-51 (stating

  that an easement may be created by estoppel where the claimant

  substantially changed position in reliance on the conduct of the

  grantor); Alexander v. McClellan, 

, 106 (Colo. App. 2002)

  (“Estoppel requires that a person, by words, by conduct, or by

  silence when he or she has a duty to speak, induce another to

  change position detrimentally in reasonable reliance on his or her

  actions.” (quoting Cont’l W. Ins. Co. v. Jim’s Hardwood Floor Co., 

, 828 (Colo. App. 2008))). Nonetheless, a covenant “will

  always work an estoppel to the extent of its terms,” Washburn at

  110, so reliance should be evaluated according to the terms of the


                                    23
  covenant at issue. See also Premier Bank, 

 (noting

  that the after-acquired interest statute, which is in harmony with

  the common law, binds grantor to the terms of the conveyance).

¶ 42   The terms of the covenant in 2007 deed were that, although

  the McGees didn’t own Parcel C at the time, the easement would

  include the land currently permitted for access if the McGees

  acquired that land. The covenant also compelled the grantors and

  their assigns to “allow a 50 foot easement for ingress, egress and

  utilities to the benefit of the Grantee . . . in the event Grantor

  acquires property [incorporating the current access road] from the

  Government.” Based on that understanding, Amada acquired

  Parcel A, from which no feasible means of access exists without the

  easement over Parcel C. It therefore reasonably relied on the

  McGees’ promise to allow an easement over Parcel C if they could

  acquire it.6 The district court did not err by recognizing the claimed

  easement.



  6Similar covenants promising transfer of after-acquired interests
  have been given effect in Illinois. E.g., Bennett v. Waller, 

,
  97 (1859) (upholding a covenant in a quitclaim deed promising
  “with all convenient speed” to obtain a patent for the premises and
  execute additional deeds if necessary to ensure transfer of perfect

                                     24
  III.   The Court Properly Recognized an Access and Utility Easement
                   Over Parcels B and C in favor of Parcel D

¶ 43     The Pomeroys next challenge the district court’s recognition of

  an implied access and utility easement over Parcels B and C in

  favor of Parcel D. They contend that the evidence did not support

  the court’s conclusion that the McGees’ prior use of the access road

  to enter Parcel D created an implied easement. They further

  contend that any implied easement arising by necessity did not

  include utility rights.

¶ 44     To the extent the Pomeroys base their arguments on factual

  disputes, we review for clear error. Campbell v. Summit Plaza

  Assocs., 

, 469 (Colo. App. 2008). However, we review

  any legal issues de novo. 

         A.   The Elements of an Easement by Prior Use Were Met

                                  1.    Law

¶ 45     When not expressly conveyed, easements may arise by

  implication. Lobato, 71 P.3d at 950. Colorado law recognizes




  title); Phelps v. Kellogg, 

, 137 (1853) (where a grantor had
  only a right of preemption at the time of conveyance, but the deed
  included a promise to transfer further title if it was acquired, the
  court enforced the covenant to transfer after-acquired title).

                                       25
  implied easements based on a strong public policy in favor of

  honoring the intentions of parties and avoiding unjust results and

  against rendering land useless due to a lack of access. Id.;

  Thompson v. Whinnery, 

, 540 (Colo. 1995). To that

  end, when a party conveys property, there is a presumption that the

  party has conveyed whatever is necessary to provide for its

  beneficial use. Thompson, 895 P.2d at 540; see also Collins v.

  Ketter, 

, 733 (Colo. App. 1986).

¶ 46   An easement by prior use is a type of implied easement. To

  establish an easement by prior use, a party must show that

            1) the servient and dominant estates were once
            under common ownership, 2) the rights alleged
            were exercised prior to the severance of the
            estate, 3) the use was not merely temporary, 4)
            the continuation of this use was reasonably
            necessary to the enjoyment of the parcel, and
            5) a contrary intention is neither expressed nor
            implied.

  Lobato, 71 P.3d at 951 (citing Restatement (Third) of Prop.:

  Servitudes § 1.2(2) (Am. L. Inst. 1998)).

¶ 47   The “common ownership” requirement serves to protect the

  ownership rights of grantors by requiring all owners of an estate to

  impliedly or expressly consent to the burden of an easement before



                                    26
  it can arise. Campbell, 

 (noting that “ownership and

  its attendant rights are what is important, not [arbitrary lot]

  divisions or identifiers”); Restatement (Third) of Prop.: Servitudes

  § 2.3 (Am. L. Inst. 2000); cf. Yellowstone River, LLC v. Meriwether

  Land Fund I, LLC, 

, 1079 (Mont. 2011) (stating that

  an implied easement may arise only “at the time of severance,

  because the common owner may grant or reserve an easement only

  over her own property” not over neighboring or intervening

  property).

¶ 48   Similarly, the requirement that the “use was not merely

  temporary” is intended to honor the owner’s intent at the time of

  severance. Thus, to create an easement by prior use, the owner

  must use the premises “in [an] altered condition” long enough prior

  to severance to demonstrate that the owner intended the change to

  be permanent. Lee v. Sch. Dist. No. R-1, 

, 331, 

, 236 (1967).

                              2.    Analysis

¶ 49   The Pomeroys assert that, because the McGees conveyed

  Parcel A to Amada before the McGees acquired Parcels C and D, the

  relevant parcels were not under common ownership prior to


                                    27
  severance and no easement as to Parcel D was created. They insist

  that to prove common ownership, Amada was required to show the

  McGees owned all the parcels simultaneously and that all their land

  was contiguous.

¶ 50   We are not persuaded. This argument misconstrues the scope

  of Amada’s claim. Amada’s claim is that it holds an easement

  appurtenant to the dominant estate, Parcel D, over Parcels B and C,

  which are the relevant servient estates. Lazy Dog Ranch v. Telluray

  Ranch Corp., 

, 1234 (Colo. 1998) (Lazy Dog II) (noting

  that servient estates are those burdened by an easement while

  dominant estates are those benefitted). Parcel A is not one of the

  servient estates that must have been under common ownership for

  an easement to have been created. Put differently, the parties’

  intent with respect to Parcel A, which was already owned by Amada

  at the time of severance, is not relevant to whether, at the time the

  ownership of Parcel D was severed from Parcels B and C, the

  McGees intended to permit Amada to enter Parcel D via the access

  or spur roads on Parcels B and C.

¶ 51   Nor is the McGees’ prior use of Parcel A relevant simply

  because it is situated between the parcels the McGees retained at


                                    28
  the time of conveyance. Colorado follows the modern rule that an

  easement may be appurtenant to land even when the servient

  estates are not adjacent to the dominant estate. Wagner v.

  Fairlamb, 

, 487, 

, 169 (1963). This rule

  applies to implied as well as express easements. Id.; Ass’n of

  Apartment Owners of Wailea Elua v. Wailea Resort Co., Ltd., 

, 617 n.7 (Haw. 2002) (noting that severance of noncontiguous

  properties is not fatal to recognition of an implied easement).

¶ 52   The Pomeroys further argue that the McGees’ prior use of

  roads on Parcels B and C to access Parcel D did not endure long

  enough and was not apparent enough to demonstrate an intent that

  their use be permanent. They point to the fact that the McGees

  only owned Parcels B, C, and D for about eighteen months and no

  paved road or trail was ever constructed over Parcel A to allow the

  McGees to access Parcel D. Again, we are not persuaded.

¶ 53   In Proper v. Greager, 

, 593 (Colo. App. 1992), for

  two years prior to severance of the subject properties, the common

  owner drove across a parking lot on the servient estate to reach a

  mobile home and shed on the dominant estate. A division of this

  court concluded that the owner’s prior use demonstrated his use of


                                    29
  the premises in an altered condition long enough to create an

  implied easement. 

¶ 54   The facts in this case are like those in Proper. The McGees

  owned the subject parcels for eighteen months, a similar length of

  time. Further, Mrs. McGee testified that to get to Parcel D, she

  routinely took the access road over Parcels B and C (which she then

  owned) to Parcel A, where (with Amada’s permission) she would ride

  her all-terrain vehicle over a trail on Parcel A to Parcel D. Thus, as

  in Proper, she used an existing road or thoroughfare on the servient

  estates to access her other parcel, fulfilling the requirement that the

  road is used in an “altered condition” by the prior owner.

¶ 55   It is of no moment that only a rough “trail” over Parcel A

  existed at the time Mrs. McGee used it. Any trail on Parcel A is only

  relevant insofar as it completes the narrative regarding the manner

  in which the McGees got to Parcel D. It shows, with specificity,

  where Mrs. McGee drove her all-terrain vehicle to get to her

  noncontiguous parcel. The Pomeroys have cited no case, and we

  have not found one, requiring that a road necessary to the common

  owner’s prior use must be paved to make the use sufficiently

  apparent. This is especially so where, as here, the intent of the


                                    30
  parties at the time of conveyance is clear because Mrs. McGee and

  Covington testified that they expected Amada to access Parcel D in

  the same way the McGees had. The trial evidence supports the

  conclusion that the owners’ prior use was apparent.

¶ 56   For these reasons, we conclude that the district court did not

  err by recognizing Amada’s implied access easement over Parcels B

  and C in favor of Parcel D.7

        B.   An Access and Utility Easement Arose By Necessity

¶ 57   The Pomeroys’ challenge to Amada’s claim to an easement by

  necessity is narrow. In their briefs, they do not appear to argue

  that no easement by necessity exists over Parcels B and C in favor

  of Parcel D. They argue only that an easement created by necessity

  cannot include the right to run utilities to the dominant parcel. On

  this basis, they argue that the trial court erred by awarding a utility

  easement to Amada in favor of Parcel D. Insofar as this contention

  raises a purely legal issue, our review is de novo. Campbell, 192




  7The court did not grant a utility easement based on prior use
  because the McGees did not install utilities when they owned Parcel
  D.

                                    31
  P.3d at 469. To the extent the Pomeroys raise an implicit challenge

  to the court’s evidentiary findings, we review for clear error. Id.

                                 1.    Law

¶ 58   An easement by necessity arises when the owner of a parcel of

  land grants part of the land to another party, leaving either the part

  granted or the part retained without access except through the

  other part. Id. In that circumstance, as with an easement by prior

  use, a presumption arises that the grantor has conveyed or retained

  whatever is necessary to provide for the beneficial use of both

  properties. Martino v. Fleenor, 

, 140, 

,

  249 (1961). If this presumption is not contradicted by the terms of

  the deed and the facts of a particular case, an easement by

  necessity will arise. 

¶ 59   The scope of an easement by necessity depends on the

  purpose for which the parcel was conveyed. Thompson, 895 P.2d at

  541. A parcel’s purpose includes uses that would be reasonably

  expected based on “normal development” of the parcel. Id. “[T]he

  law assumes that no person intends to render property conveyed

  inaccessible for the purpose for which it was granted.” Wagner, 151

  Colo. at 487, 279 P.2d at 169. Therefore, the permissible uses of an


                                      32
  easement by necessity vary according to what rights are necessary

  to enable a grantee to use the land as intended and reasonably

  expected. Id.; Thompson, 895 P.2d at 541.

¶ 60   Although Colorado has not explicitly done so, several courts in

  other states have concluded that an easement by necessity may

  include utilities. Jon W. Bruce & James W. Ely, Jr., The Law of

  Easements and Licenses in Land § 8.7 n.5, Westlaw (database

  updated Nov. 2020) (collecting cases). Support for this view is

  especially strong where a parcel is already in residential use or a

  parcel was conveyed for residential purposes, making the necessity

  of utility rights reasonable and foreseeable. Reece v. Smith, 

, 658 (Ga. Ct. App. 2004) (granting an implied utility

  easement where “[t]he utilities were necessary to the reasonable

  enjoyment of the land as a place of residence”); Brown v. Miller, 

, 61 (Idaho 2004) (upholding a trial court’s ruling that “it is

  only logical [that] an easement by necessity also includes utilities”);

  Smith v. Heissinger, 

, 671-72 (Ill. App. Ct. 2001)

  (concluding that easements by necessity are not limited to ingress

  and egress but may include utilities); Stroda v. Joice Holdings, 

, 230 (Kan. 2009) (recognizing that an easement by


                                    33
  necessity included a right to utilities because the reasonable use of

  residential property required utility services); Morrell v. Rice, 

, 1160 (Me. 1993) (“An easement created by necessity can

  include not only the right of entry and egress, but also the right to

  make use of the easement for installation of utilities . . . .”). We find

  these cases, and the notion that foreseeable residential use

  reasonably includes utilities, to be persuasive. But see Vertex

  Holdings, LLC v. Cranke, 

, 124 (Okla. Civ. App. 2008)

  (denying an easement by necessity for utilities because, at the time

  of severance, there was no necessity for a sewer line and nothing

  about the severance altered the positions of the parties).

                               2.   Analysis

¶ 61   At trial, both Amada’s trustee, Gary Gustafson, and Covington

  testified concerning the purpose for which Parcels A and D were

  sold. Based upon this testimony, the trial court found “it was not a

  secret that [Amada] intended to utilize Parcel D for residential

  purposes.” There is record support for this finding.

¶ 62   Covington testified that the 2014 conveyance of Parcel D was

  really a “continuation” of the deal between the McGees and Amada

  in 2007. The parties assumed that access and utility rights would


                                     34
  be the same for both parcels. He further testified that, at the time

  of conveyance, Parcel D had no restrictions on its use and putting a

  residence on Parcel D would have been part of “normal

  development” of the parcel.

¶ 63   Gustafson testified that when he decided to purchase Parcel A

  via the trust, he did so because he wanted to move to Montrose and

  buy land for investment. He further stated that he planned to

  divide Parcel A and install a road or utilities, an intention reflected

  in the deed to Parcel A, which provides parameters for dividing the

  parcels into residential lots. Gustafson also testified that he and

  Mr. McGee talked about their plans to split their parcels into

  smaller home sites. According to Gustafson, when Amada

  purchased Parcel D, he hoped to use that parcel as an investment

  property as well.

¶ 64   Negotiations for the Pomeroys’ purchase of the other parcels

  were proceeding simultaneously with Amada’s negotiations for

  Parcel D and the Pomeroys expressed an interest in purchasing a

  portion of the northwest corner of Parcel D. Based on the

  Pomeroys’ interest in reducing the size of Parcel D, Gustafson asked

  that additional land be added to it to ensure that Parcel D would


                                     35
  include at least thirty-six acres. He insisted on this number

  because he wanted Parcel D to have enough acreage to comply with

  state and county rules setting minimum acreage standards for

  selling a parcel. He also contemplated putting his own residence on

  Parcel D, building an access road on Parcel A to Parcel D, and

  running utilities for both parcels under that road. It was his

  understanding that because the 2007 easement to Parcel A

  included utilities, any access easement to Parcel D would include

  utilities as well.

¶ 65    We conclude that because the scope of an easement by

  necessity is set according to the purpose of the conveyance, and the

  trial court found, with evidentiary support, that Parcel D was

  conveyed for residential purposes, the court did not err by

  recognizing that Amada’s easement on Parcels B and C in favor of

  Parcel D includes utility rights.8




  8The district court’s order stated that “there was no evidence that
  allowing the existing easement for utilities to also benefit Parcel D
  would in any way further burden Parcels B and C.” Therefore,
  utility rights are not precluded by a concern with overburdening
  Parcels B and C.

                                       36
       IV.   The Court Did Not Err by Requiring Removal of the Gate

¶ 66     The Pomeroys next contend that the district court erred by

  concluding that the gate on the spur road at the elk fence must be

  removed because it is an unreasonable interference with Amada’s

  easement. Whether gates or other impediments unreasonably

  interfere with the rights of an easement holder is a question of fact.

  Lazy Dog Ranch v. Telluray Ranch Corp., 

, 317 (Colo.

  App. 1996) (Lazy Dog I). We will not disturb the district court’s

  findings unless they are not supported by the evidence. 

                                 A.    Law

¶ 67     Where, as here, an easement is not exclusive, both the owner

  of the dominant estate and the owner of the servient estate have a

  right to use the property. Therefore, the parties’ interests must be

  balanced. Lazy Dog II, 965 P.2d at 1238. The owner of the servient

  estate has a “qualified right to put his or her property to any lawful

  use for which it may be adapted” but “cannot unreasonably

  interfere with the superior right of the person possessing the

  easement.” Lazy Dog I, 

. By contrast, the owner of

  the dominant estate may use the easement in any manner

  “reasonably necessary to permit [its] full use,” but cannot


                                      37
  unreasonably interfere with the enjoyment of the servient estate.

  Id.; Lazy Dog II, 965 P.2d at 1238.

¶ 68   When a grant is silent regarding whether an easement may be

  gated, and the owner of a servient estate insists on gating the

  easement, his conduct may unreasonably interfere with the rights

  of the easement holder. Lazy Dog I, 

; see also

  Schold v. Sawyer, 

, 685 (Colo. App. 1997).

  Circumstances relevant to the reasonableness of his conduct

  include, among other factors, “(1) the purpose for which the grant

  was made; (2) the intention of the parties given the circumstances

  surrounding the grant; (3) the nature and situation of the property;

  [and] (4) the manner in which the easement was used.” Lazy Dog I,

  

.

                              B.   Analysis

¶ 69   The Pomeroys contend that the district court’s finding was

  erroneous because the court improperly balanced the interests of

  the parties. They argue that the court gave insufficient weight to

  the fact that they erected a three-strand fence along the

  north/south border between Parcel C and Parcel A that connects

  with the elk fence, creating an enclosed horse pasture on Parcel C.


                                   38
  According to the Pomeroys, removal of the gate at the elk fence

  would render this space unusable as a horse pasture, denying them

  the full enjoyment of their estate. In addition, they assert that the

  court gave too much weight to Amada’s future development plans

  because these plans are still speculative.

¶ 70   The Pomeroys did not raise potential destruction of the horse

  pasture during trial, focusing instead on the damage elk might

  cause should they enter through the opening in the fence. Because

  they raised the horse pasture issue for the first time in their Rule

  59 motion, and the argument was based on evidence not presented

  at trial, the district court declined to consider it. The Pomeroys

  therefore failed to preserve this issue for review. Grant Bros. Ranch,

  LLC v. Antero Res. Piceance Corp., 

, ¶ 11.

¶ 71   Moreover, we do not consider whether the district court gave

  too much weight to Amada’s residential development plans, given

  that these plans remained speculative, or failed to give enough

  weight to the Pomeroys’ need for a continuous elk fence. Our

  review is confined to determining whether the district court’s

  findings are supported by the evidence. Lazy Dog I, 

. The court’s order shows that it considered the factors listed in


                                    39
  Lazy Dog I: the purpose of the grant, the intentions of the parties,

  the “nature and situation” of the land, and the manner in which the

  easement was used. 

 It found that the expected placement of

  the spur road “necessitated that it pass through the elk fence,” the

  grant’s purpose was to facilitate residential use, and prior to the

  Pomeroys’ ownership, there were no gates or impediments to

  access. It further noted that even when the elk fence is gated, the

  Pomeroys lack a complete perimeter fence because they have

  chosen to allow a large break in the fence where it intersects with

  their driveway. The record contains support for each of these

  findings. Accordingly, we will not disturb them on appeal. 

       V.    We Decline to Address the Width of the Headgate Easement

¶ 72        The Pomeroys further argue that the district court abused its

  discretion by denying their Rule 59 motion to amend the judgment

  to widen the headgate easement. We decline to review this issue

  because it was not properly appealed.

¶ 73        Under C.A.R. 4(a), to preserve the right to appeal, a party in a

  civil case must file a notice of appeal within forty-nine days of the

  date the judgment is entered (although the running of the time to

  appeal is terminated by the filing of a Rule 59 motion). Failure to


                                        40
  file a timely notice of appeal deprives this court of jurisdiction,

  precluding review on the merits. In re Estate of Anderson, 

, 869 (Colo. App. 1986).

¶ 74   In this case, the district court rendered judgment on

  September 16, 2019. The Pomeroys filed their Rule 59 motion on

  September 30. They then filed a notice of appeal on November 4,

  2019, forty-nine days after the district court rendered judgment.9

  At that time, the trial court had not ruled on their Rule 59 motion,

  and it did not do so until November 25, 2019. The Pomeroys were

  therefore unable to appeal the denial of their Rule 59 motion when

  they filed their initial notice of appeal. Moreover, they did not

  amend the notice of appeal after the district court denied their Rule

  59 motion. The time for supplementing or amending the initial

  notice of appeal has now expired.

¶ 75   Under these circumstances, the district court’s ruling on the

  Rule 59 motion was not properly appealed and we have no

  jurisdiction to consider it. 

 (holding that this court lacked



  9 The Pomeroys’ Rule 59 motion terminated the running of the time
  for filing a notice of appeal. C.A.R. (4)(a). Therefore, the notice of
  appeal was prematurely filed.

                                     41
  jurisdiction to review a postjudgment order where the order was not

  initially appealed and the notice of appeal was never supplemented).

       VI.   The Court Improperly Denied Damages for Trespass

¶ 76   On cross-appeal, Amada contends that the district court erred

  by declining to award economic damages to remedy the Pomeroys’

  alleged trespass. We agree.

¶ 77   Although the import of the court’s order is somewhat unclear,

  it appears the court determined that, with one exception not

  applicable here, a servient owner cannot “trespass” on an easement

  by placing impediments on it because the easement holder does not

  technically possess the land. Since no trespass may occur, no

  damages for trespass may be awarded, but injunctive relief is

  available. This ruling requires us to consider what remedies may be

  given for a servient estate owner’s placement of impediments on an

  easement. We review this legal question de novo. Campbell, 

.

¶ 78   In making its decision, the district court largely relied on

  language from Upper Platte & Beaver Canal Co. v. Riverview

  Commons General Improvement District, 

, 716-17 (Colo.

  App. 2010), wherein a division of this court considered whether the


                                    42
  Colorado Governmental Immunity Act (CGIA), §§ 24-10-101 to -120,

  C.R.S. 2020, barred the plaintiff’s claims for declaratory, injunctive,

  and restorative relief against municipal authorities that made

  alterations to the plaintiff’s easement. In that context, the Upper

  Platte division stated that “pure rules of trespass, which are

  founded on possessory rights, . . . do not apply to easements.” 

 (quoting 1 Dan B. Dobbs, Law of Remedies 814 (2d ed.

  1993)).

¶ 79   This statement is not applicable to the question raised here

  because the division cited it in connection with an attempt to

  construe specific statutory language in the CGIA. Moreover, in the

  next sentence, the Upper Platte division noted that whether a

  particular tort such as trespass is identified or not, a party that

  interferes with an easement may be liable for damages based on

  their interference. 

. Thus, Upper Platte is no bulwark

  against an award of damages in this case.

¶ 80   Further, in Roaring Fork Club, L.P. v. St. Jude’s Co., the

  supreme court expressly stated that an easement holder may be

  entitled to economic damages for trespass when the owner of the

  servient estate obstructs an easement. 

, 1234 (Colo.


                                    43
  2001) (concluding that the servient estate owner had trespassed on

  the plaintiff’s easement by altering it, and, as a result, the dominant

  estate owner “may well be entitled to damages”).

¶ 81   In Proper, 

, a division of this court considered

  whether a court can award damages based on a servient estate

  owner’s obstruction of an easement. It concluded that “if necessary

  to grant an injured party complete relief for past interference with

  his easement, the court may also award monetary damages.”10 

  To support its holding, the Proper court cited Schmidt v. Parker

  Land & Cattle Co., 

, 871-72 (Colo App. 1974) (not

  published pursuant to C.A.R. 35(f)), a case in which another

  division of this court awarded damages to an easement holder who

  was denied access to his land when the servient owner obstructed

  his easement with a locked gate. Although the injury to the plaintiff

  in Schmidt did not include physical damages to his land or the

  easement, the court awarded damages for loss of the opportunity to




  10The Proper court did not explicitly identify the defendant’s
  installation of a fence blocking the easement as a trespass. But the
  supreme court so characterized it in Roaring Fork Club, L.P. v. St.
  Jude’s Co., 

, 1234 (Colo. 2001).

                                    44
  pasture his property and loss of the property’s reasonable rental

  value. 

¶ 82   The holdings in these cases comport with the view set forth in

  the Restatement (Third) of Property, which acknowledges that

  damages for violation of easement rights are available to an

  easement holder whose right of way is obstructed. Restatement

  (Third) of Prop.: Servitudes § 8.3 (Am. L. Inst. 2000). It states, “[f]or

  obstruction of an easement, damages and injunctions requiring

  removal of the obstruction, restoration of the easement, and

  prohibiting future obstruction are normally appropriate.” Id.

¶ 83   In this case, Amada alleged that the Pomeroys committed

  trespass by locking the gate at the entrance to the access easement

  and installing a gate on the spur road at the elk fence. Gustafson

  testified that, to remedy the situation, he had to leave his residence

  in Arizona, drive to Colorado, and spend two nights in a hotel room

  while he sought access to his land. The Pomeroys may be liable for

  these damages under Colorado law.

¶ 84   We reverse the district court’s judgment insofar as it

  concluded that the Pomeroys could not have trespassed on Amada’s

  easement by installing or locking gates at the access and spur


                                     45
  roads. We further reverse the court’s ruling denying Amada

  damages. We remand this case for a hearing on whether the

  Pomeroys’ obstruction of Amada’s easement constituted trespass,

  and if so, what damages should be awarded.

                           VII. Conclusion

¶ 85   We affirm the judgment in part, reverse it in part, and remand

  for a hearing on Amada’s trespass claim.

       JUDGE LIPINSKY and JUDGE PAWAR concur.




                                  46