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Real Estate Law

An Overview of Colorado Easement Law

From Creation to Termination

August / September 2020 By April D. Hendricks

This article provides an overview of key principles of Colorado easement law. It discusses various types of easements recognized by Colorado courts and how they may be created, used, and terminated.

An easement is a nonpossessory interest in property owned by another.1 Formally defined, “an easement is a right conferred by grant, prescription or necessity authorizing one to do or maintain something on the land of another, ‘which, although a benefit to the land of the former, may be a burden on the land of the latter.’”2 As a practical matter, the ownership of an easement confers upon the easement holder only the right to use the property burdened by the easement for a specific purpose; legal title to and the right to possess the land itself remains with the property’s owner.3

Though disputes surrounding the creation, use, and termination of easements are commonly handled by attorneys specializing in real estate transactions and litigation, the basic principles of easement law may arise for a broad spectrum of practitioners and in a variety of contexts, such as water transactions; oil, gas, and mineral transactions; and local government and municipal undertakings. This article provides an up-to-date overview4 of the key principles of Colorado easement law, including a discussion of the various types of easements recognized by Colorado courts and how these easements may be created, used, and terminated under Colorado law.

The Language of Easements

Many common terms associated with easements are not routinely encountered in other areas of law. The following terms and phrases are typically found in cases discussing easements.

Servient Estate versus Dominant Estate

The portion of the property that is burdened by an easement is referred to as the “servient” estate, or the servient tenement, while the property benefited by the easement is referred to as the “dominant” estate, or the dominant tenement.5 Some courts prefer to use the less antiquated terms of burdened and benefited estates.6 Typically, an easement benefits one property while simultaneously burdening an adjacent property. For instance, in the case of a ditch easement,7 the easement holders may construct a ditch across lands owned by others to convey water to their property. In this scenario, the ditch easement is the benefited estate and the lands through which the ditch passes are the burdened estates.8

In the case of reciprocal easements, two or more property owners agree upon an easement that will offer certain benefits and burdens for each affected parcel, thus making each parcel both a dominant and a servient estate.9 Reciprocal easements are commonly used in commercial settings, for example shopping centers or residential complexes with multiple buildings and tenants, to delineate access to and use of shared parking lots and common areas, public roads and walkways, and permissible signage locations. In residential settings, reciprocal easements often involve the use of a shared driveway among two or more adjacent parcels. In any scenario, however, all properties involved are both benefited and burdened by the use and enjoyment of the reciprocal easement.

Appurtenant versus In Gross

An appurtenant easement is intended to benefit a specific parcel of land, the dominant estate. This type of easement runs with the land to which it is attached, so it passes to successive owners of the dominant estate and the servient estate, irrespective of whether the easement is referenced in the deed.10 Under Colorado law, and in most other jurisdictions, easements are presumed to be appurtenant.11

An easement in gross is not attached to the land itself and, therefore, does not run with the land. Rather, this type of easement grants a personal right to a specific individual to use another’s property.12 Examples of easements in gross include a landowner’s grant to a specific individual of the right to hunt or fish on the property, or a grant to a utility company of the right to construct a pipeline or power lines through, across, or under the property. At common law, easements in gross were considered to be nontransferable; however, under Colorado law, easements in gross may either be personal to a specific individual or freely transferable, depending on the parties’ intent when the easement is created.13

Exclusive versus Nonexclusive

Generally, easements are presumed to be nonexclusive. This means that both the easement owner and the servient estate owner may make use of the property burdened by the easement, provided that the servient estate owner does not unreasonably interfere with the easement owner’s use of the easement.14 Where a nonexclusive easement burdens a parcel of land, the rights of the servient and dominant owners must be balanced to ensure the reasonable enjoyment of both estates.15 But where the owner of the servient estate and the easement holder specify that an easement is to be exclusive, the servient estate owner may not access or use any portion of the easement.16

Affirmative versus Negative

All easements are either affirmative or negative. Easements typically confer an affirmative right to enter upon, and use a portion of, the servient estate for a specific purpose. For instance, roads and driveways are often constructed within an affirmative access easement, and pipelines and powerlines may be developed and installed within an affirmative utility easement.

On the other hand, negative easements, also referred to as restrictive covenants,17 prohibit the servient estate owner from using and enjoying his or her property in certain respects. This type of easement does not permit a right of entry upon the servient estate, but rather requires the servient estate owner to restrict his or her use of the property for the benefit of another. One common example of a negative easement is a conservation easement donated by a landowner to a land trust or other governmental entity that imposes perpetual restrictions on the property’s development and use, to protect the property’s conservation value.18 Other common types of negative easements include easements for light and air and for unobstructed views. In these instances, the servient tenement owner typically agrees not to build on his or her property in such a manner that would prevent light from entering a neighboring property or that would obstruct a neighboring landowner’s view. As property development and construction activities continue to progress in Colorado, the use of light and view plane easements is likely to increase as well.

Creating an Easement

Under Colorado law, easements may be created in a variety of ways. Most commonly, easements are created and conveyed in writing (an “express easement”), and oral agreements that purport to recognize an easement are invalid under the statute of frauds.19 As a general matter, where an easement is not expressly granted and acknowledged in writing, the claimant of an easement must seek judicial recognition of his or her interest in the property through one of the several theories of implied easements discussed below.

Express Easements

A property owner may expressly grant an easement by deed or other instrument, or, alternatively, the owners of a parcel of land may reserve an easement for themselves when conveying the land to another.20 To determine whether and to what extent an easement has been expressly granted, courts first look to the contents of the deed or instrument to determine the parties’ intent.21

Irrespective of whether the easement is conveyed by grant or reservation, no particular words are necessary to convey an easement in writing. Colorado courts have routinely found that “[w]ords which clearly show the intention to give an easement are adequate to demonstrate its creation, provided the language in the instrument is sufficiently definite and certain in its terms.”22 Generally, vagueness in describing an easement or its location will not invalidate the easement’s existence. The written document must identify with “reasonable certainty” that an easement has been created, along with the dominant and servient estates; however, courts may decline to recognize an easement that has not been identified or defined with sufficient detail.23 For instance, courts have determined that a deed validly conveyed an easement by accurately reciting the size, dimensions, type of use, and location of the easement on the servient tenement, as well as the legal description of the servient property.24 Generally speaking, if the servient estate’s location is described with reasonable certainty, an express easement will not be deemed void for vagueness.25 If the conveyance documents clearly include an easement but do not describe its location with specificity, the easement may still be enforceable by the parties, but in such instances, either an amended or correction deed or a judicial decree will be necessary to determine and fix the easement’s location.

Implied Easements

Easements that are not expressed in writing by the parties may arise out of the existence of certain facts implied from the transaction.26 Courts have recognized a number of instances in which an easement may be created through implication, including by necessity, prior use, prescriptive or adverse use, and estoppel.

Necessity. Easements typically arise by necessity to resolve access issues for landlocked or otherwise inaccessible properties, based on the assumption and public policy consideration that no person intends to render property inaccessible for the purposes for which it was conveyed or retained.27 Generally, an easement may be implied by necessity where a parcel of land under common ownership is severed and the only reasonable means of accessing the severed property requires crossing the adjoining tract.28 Moreover, the necessity for the easement must have existed at the time the title to the property was severed, and though the need for the easement must be great, the easement need not be the only means of access to the property.29 For example, the Colorado Supreme Court implied an easement by necessity based on a parcel’s location in a mountainous, rocky area where the construction of roads was dangerous and expensive, finding that a “practical inability” to access the parcel constituted sufficient necessity to justify the easement.30 Though physical inability to reach the property benefited by the easement is not required, courts will not imply an easement by necessity if a property can be reached through reasonable alternative means of ingress and egress.31

Prior use. An easement may be implied by prior use when (1) the servient and dominant estates were, at one time, under common ownership; (2) the alleged use was exercised before the severance of title; (3) the use was not temporary; (4) the continuation of the use is reasonably necessary to enjoyment of the parcel; and (5) a contrary intention is neither expressed nor implied by the parties.32 An easement implied by prior use is similar to an easement implied by necessity in that the existence of both types of easements is predicated upon the actions and intentions of the parties at the time the affected parcels were severed from common ownership. However, unlike an easement implied by necessity, an easement by prior use requires that the use be exercised before severance of the parcels from common ownership.33

For example, in Proper v. Greager,34 the Court of Appeals found that an easement had been implied by prior use where the owners of a parcel of land constructed a parking area and café on one corner of the lot and a home elsewhere on the property. The owners of that lot would commonly use portions of the parking area to access the home and storage shed. The parcel was later divided such that Proper purchased the home and surrounding property, and another party purchased the café and the parking lot. Proper continued to use the parking lot to access his home for 26 years with the knowledge of the café owners. Though the café owners eventually sought to preclude Proper’s continued use of the parking lot by constructing a fence to prevent access to Proper’s home, the Court found that an easement from prior use had been established for Proper’s benefit.35

Prescriptive or adverse use. Easements may also be acquired by prescriptive use, similar to the acquisition of property through adverse possession. A prescriptive easement allows one to use the land of another for a specified purpose, after using that land for that purpose for the statutorily mandated period.36 Under Colorado’s adverse possession statute, CRS § 38-41-101, one may acquire an easement by prescription by demonstrating that the use has been (1) open or notorious, (2) continuous and without effective interruption for the 18-year prescriptive period, and (3) adverse or pursuant to an attempted, but ineffective, express grant.37

In 2008, the Colorado General Assembly amended the adverse possession statute to require an enhanced showing by a claimant seeking to assert a claim to property through prescriptive use. Most notably, these statutory amendments require an adverse claimant to (1) establish a good faith belief that he or she was the property’s true owner, and (2) prove each of the above-noted elements of adverse possession by clear and convincing evidence.38 Moreover, where the adverse claimant prevails and is awarded title to the property in question, the court may order the claimant to pay damages to the party losing title, in the amount of the value of the property lost plus property taxes paid during the prescriptive period.39 Where the claimant acquires an easement through adverse use, the court will equitably calculate the damages owed as a percentage of the value of the property and the total property taxes paid, based on the nature and character of the property lost and the remainder of the property.40

To satisfy the requirements for a prescriptive easement, the claimant’s use must be continuous and without interruption for the entire 18-year period. The prescriptive use is no longer continuous if the prescriptive period is interrupted at any time during which the property owner reinstates his or her exclusive possession of the property.41 In Trask v. Nozisko, a property owner successfully defeated his neighbor’s claim of a prescriptive easement where the neighbor’s longtime use of the landowner’s driveway was interrupted for less than a week by the landowner’s construction of a large earthen berm and trench across the driveway. Though the neighbor eventually removed the berm and continued to use the driveway, the evidence demonstrated that the neighbor was denied the ability to access and use the driveway while the berm was in place. The Court of Appeals in Trask held that, because the erection of this barrier was intended to, and actually did, prevent the neighbor from using the driveway, his use was not continuous for the entirety of the prescriptive period.42

If a party claiming a prescriptive easement can establish that its use of the property was continuous and open or notorious for the entire 18-year prescriptive period, that party is entitled to a presumption that the use was adverse.43 If the landowner cannot present evidence sufficient to rebut that presumption, the claimant is entitled to a finding that a prescriptive easement exists.44 Use is not adverse if the landowner permits that use to occur; accordingly, evidence that the landowner granted the claimant permission to access his or her property is fatal to a claim of adversity, and will thus defeat a claim for a prescriptive easement.45 However, the landowner’s knowledge of the claimant’s use, and its subsequent acquiescence or silence as to that use, does not constitute a sufficient showing by the landowner that the use was permissive and, accordingly, this may not defeat a claim of prescriptive use.46

Estoppel. Courts may find that an easement has been created by estoppel if (1) the servient estate owner permits another to use the land under circumstances in which it was reasonable to foresee that the user would substantially change his or her position, believing the permission would not be revoked; (2) the user substantially changed his or her position in reasonable reliance on that belief; and (3) injustice can only be avoided by establishing an easement in favor of the user.47

An easement by estoppel is an equitable remedy, recognizing that when a landowner induces another to change his or her position in reliance on the promise of an easement, the landowner is estopped from later denying that easement’s existence. Courts often find that an easement has been created by estoppel where a property owner permits another to use a portion of the property, but later changes his or her mind and seeks to deny the easement’s existence due to the lack of a formal conveyance.48 The servient estate owner need not demonstrate that his or her reliance was the result of the landowner’s deception; a showing that the claimant’s reliance was reasonable under the circumstances will suffice. Whether a claimant’s reliance on the landowner’s promises was reasonable depends on the facts and circumstances of each case, including the nature of the transaction and the parties’ sophistication.49

Judicial Recognition of Implied Easements

As discussed above, several theories are available to claimants seeking recognition of an implied easement. Unlike express easements, an implied easement has legal effect only if the claimant successfully proves all of the required elements for the type of easement sought and, as a result, obtains a court order or decree acknowledging that easement’s existence. One means available to claimants is to commence a quiet title action under CRCP 105 requesting that the court determine ownership of the property in question. A person who files a quiet title action should record a notice of lis pendens in the real property records of the county or counties in which any portion of the property is located.50 The notice must contain the name of the court where the action is pending, the names of the parties to such action, and the property’s legal description.51 By recording the lis pendens, the claimant provides notice of pending litigation to any person who may thereafter acquire an interest in the property.

When the court enters an order acknowledging the existence of an easement, the claimant should, depending on the circumstances, obtain from the court a quiet title decree or record a copy of this order in the county’s property records. Considering the time, expense, and uncertainty involved in seeking the court’s acknowledgment of an implied easement, obtaining an easement through an express grant is generally preferable, to the extent such an option is available.

The Easement’s Scope

The scope of permissible uses within the easement area may vary, depending on how the easement was created. Irrespective of whether the easement was created through an express grant or implied through the actions of the parties, the easement’s scope determines what the easement holder may do with and within the easement area, and conversely, what actions the servient estate owner may take without infringing on the easement holder’s rights. The easement holder’s rights are limited by the nature and purpose for which the easement was established.52 Generally, the easement owner may use, maintain, and improve the easement in any manner that is reasonably necessary to further the purpose for which the easement was granted, provided that such activities do not unreasonably damage the servient estate or unreasonably interfere with its use and enjoyment.53 Likewise, unless the parties’ intentions require otherwise, the servient estate owner may also use the property burdened by the easement in any manner that does not unreasonably interfere with the easement holder’s ability to use the easement for its intended purpose.54

Express Easements

Where an easement is expressly granted, the document conveying the easement may describe the purposes for which the easement may be used, as well as uses within the easement area that are specifically not permitted. In such cases, the scope and extent of an expressly created easement are limited to the description provided within the conveyance. However, where the writing is silent as to the easement’s permissible uses, courts have determined that the easement may be used for any purpose to which the easement may reasonably be devoted, provided that no use of the easement may impose a greater burden on the servient estate than that which was established when the easement was first created.55 Where use is needed beyond the scope of the granted easement, private condemnation procedures are available,56 although that statutory mechanism is outside the ambit of this article.

Where the written conveyance vaguely or ambiguously addresses the scope of the easement granted, courts will interpret the document in a manner similar to any other deed or contract to properly give effect to the parties’ intent.57 Colorado courts have adopted a flexible approach to interpreting instruments conveying easements, as opposed to the more rigid “four corners” approach historically used to interpret ambiguously written contracts. In Lazy Dog Ranch v. Telluray Ranch Corp., the Colorado Supreme Court determined that the examination of extrinsic evidence may be relevant to determining whether a deed conveying an easement is actually ambiguous.58

Examples of extrinsic evidence that may prove useful to determining the parties’ intent include (1) the location and character of the properties that are burdened and benefited by the easement; (2) the use made of those properties before and after the easement was created; (3) the character of the surrounding area; (4) the existence and contours of any general development plan for the area; and (5) consideration paid for the easement.59 If, upon consideration of such evidence, the court finds that the conveyance document is not ambiguous, the court must disregard the extrinsic evidence, and the plain language of the instrument must be given full force and effect.60 However, should the court find that the document is ambiguous, the court must further examine the extrinsic evidence submitted by the parties to determine the parties’ actual intent in creating and granting the easement.61

Implied Easements

An implied easement must be broad enough to allow the uses necessary to permit full enjoyment of the dominant estate. For example, the scope and type of uses permitted for an easement implied by necessity vary based on the necessity that gave rise to the easement.62 The scope of an easement by prior use, however, is typically considered to be limited to the use that originally gave rise to the easement.

Prescriptive Easements

Colorado courts have outlined a specific line of inquiry in determining the proper scope of an easement acquired by prescription. In Wright v. Horse Creek Ranches, the Colorado Supreme Court adopted the approach outlined in Restatement (First) of Property 63 §§ 477–479, which provide guidance for determining the scope of permissible uses for an easement acquired by prescription.64 Restatement § 477 provides that “[t]he extent of an easement created by prescription is fixed by the use through which it was created.” To determine whether a particular type of use is permissible under a prescriptive easement, the Wright Court looked to Restatement § 478, which advises that the claimed use must be compared with the original use of the easement “with respect to (a) their physical character, (b) their purpose, [and] (c) the relative burden caused by them upon the servient tenement.”65 In considering whether a subsequent use of the prescriptive easement constitutes an expansion of the original use, the Wright Court further looked to Restatement § 479, which provides that, in addition to the factors noted above, courts should consider the needs resulting from the normal evolution of the use of the dominant estate, balanced against the extent to which those needs increase the burden placed on the servient estate.66 In weighing these factors, the Wright Court refused to permit the holder of a prescriptive easement acquired for agricultural use to subsequently use that easement for new residential and recreational uses.67

Courts have also used this test to examine a change in the degree of use of a prescriptive easement. In Clinger v. Hartshorn, the Court of Appeals examined the use of a prescriptive easement awarded to the owner of a guide and outfitting business that had expanded over time to serve additional customers.68 Where the character and purpose of the easement remained the same, the Court focused on the burden on the servient estate due to the additional number of people accessing the easement area. Under Restatement § 478, “[a]n increase in the burden on the servient tenement beyond that caused by the adverse use by which an easement was created is an undue increase if it is such an increase as, it may reasonably be assumed, would have provoked an interruption in the adverse use had the increase occurred during the prescriptive period.” In Clinger, because the evidence demonstrated only a limited increase in the outfitter’s use of the easement, the Court determined that the increased burden to the servient estate was not substantial enough to require a limitation on the easement.69

Terminating an Easement

Just as easements can be created in a variety of ways, they may also be terminated under various circumstances, which, in some cases, depend on how the easement was created in the first place. For instance, an easement may terminate in accordance with an expressly stated provision in the granting instrument. Parties to an expressly granted easement are free to negotiate a time limit, a specific date, or the occurrence of a specific event upon which the easement will terminate; otherwise, the easement will be presumed to be perpetual in nature. However, any easement is subject to termination by other means, as discussed below.

Written Release or Conveyance

Any easement that is appurtenant to the land, irrespective of how that easement was originally created, may be surrendered in writing, either through a written release of the easement or formal conveyance. In either scenario, the written termination must be signed by the easement holder as an affirmative acknowledgment that he or she is relinquishing all rights in and to the easement.

Merger

If the easement’s owner conveys or relinquishes the easement to the servient estate owner, the easement will cease to exist through the merger of the dominant and servient estates into common ownership. By definition, an easement requires two tracts of land to be held under separate ownership, with one tract burdened and the other benefited by the existence and use of the easement. When the servient and dominant estates come under common ownership, the servient estate no longer needs to be burdened by the easement, so the easement will be deemed terminated.70 However, the common ownership must be absolute, without fractional owners or other joint interests taking title to either estate. For instance, in Westpac Aspen Investments v. Residences at Little Nell Development, LLC, the Court of Appeals declined to find that an easement was terminated by merger where the easement was owned in joint tenancy and the servient estate was owned by one individual.71 The Court explained that an easement will not terminate by merger of title where only one of the owners unilaterally conveys the easement right that benefits the dominant estate.72 Holding otherwise would extinguish the easement and thus render the remaining joint tenant unable to access the property.73 To demonstrate that an easement has been extinguished by merger, the dominant and servient estates must each be owned in “a completely identical manner.”74

Cessation of Necessity

Unlike other types of implied easements, easements by necessity exist only as long as the necessity continues. Because an easement by necessity can be implied only to remedy the “practical inability” to access a parcel of land, if the need for the easement is eliminated by changed circumstances, such as construction of a road or other means of access, the easement will terminate.75

Abandonment

An easement can be abandoned, but it cannot be lost through mere non-use. Rather, the party asserting that the easement has been abandoned (typically the servient estate owner) must demonstrate that the easement holder took affirmative acts manifesting his or her intention to abandon the easement.76 This threshold is difficult to satisfy, considering that courts have held that actions confirming the abandonment of an easement must be established by “clear, unequivocal, and decisive evidence.”77 Accordingly, even where the easement has never been used, the easement holder will retain title to the easement in the absence of further action taken to effectively abandon the easement.78

Adverse Possession

An easement may also be terminated through adverse possession.79 The adverse possession statute, CRS § 38-41-101(1), applies to “any right or interest of or to real property,” which includes both possessory interests in land, such as title to real property, and nonpossessory interests in land, such as ownership of an easement. Thus, in Matoush v. Lovingood, the Colorado Supreme Court concluded that this statute not only permits the acquisition of an easement through adverse use, but also allows an easement to be terminated in the same manner.80 That is, an easement may be terminated if the servient estate owner uses the easement in a manner that is adverse to the easement holder’s right of use, open or notorious, and continuous and uninterrupted for the statutorily prescribed timeframe of 18 years.81 One need not also prove that an easement has been abandoned to successfully declare that the easement has been terminated by adverse use.82 As discussed above, a successful claim to terminate an easement by abandonment depends on the easement holder’s conduct. However, in an action to terminate an easement through adverse use, the inquiry focuses on the adverse party’s use of the easement area, not the easement holder’s actions.83

To satisfy the requirement of “adverse use,” the claimant must demonstrate that his or her use of the easement area is incompatible or irreconcilable with the easement holder’s right of use. This inquiry is necessarily fact-specific. Recall, however, that the servient estate owner typically retains the right to use the easement area in a manner consistent with the easement holder’s rights. As such, the servient estate owner may use the easement area, and that use will not be deemed adverse unless and until the easement holder requires the use of the easement area, demands to use it, and is refused.84 At that time, the statutorily mandated adverse possession period will be triggered, and the adverse use must continue for the entire 18-year period to support a claim that the easement has been terminated by adverse use.

Estoppel

In a similar scenario, an easement may also be terminated by estoppel. If the easement owner becomes aware of or consents to actions taken by the servient estate owner to prevent the easement holder’s access to and use of the easement, and the easement holder takes no action consistent with preserving the easement rights, the easement may be terminated. In such instance, the easement holder will be estopped from denying that the easement rights were terminated by the servient estate owner’s actions.85

For instance, in Romberg v. Slemon, Romberg owned an access easement across lands owned by Slemon and others. The adjacent landowners sought to develop their land into a planned subdivision and sought the release of Romberg’s easement. In exchange for Romberg’s abandonment of the easement, the adjacent landowners agreed to construct and pave alternative access to the Romberg property and provide Romberg with underground utility lines. Though Romberg refused to acknowledge the agreement in writing, she verbally agreed to release the easement and the adjacent landowners constructed the new driveway and installed the utility lines. When Romberg later sought to quiet title to the easement, the trial court held that the easement had been terminated. The trial court found, and the Court of Appeals agreed, that Romberg was estopped from denying that her easement rights had been terminated because the adjacent landowners relied on her commitment to release the easement, to their detriment.86

Conclusion

The creation, use, and termination of easements are topics that are often encountered by practitioners unfamiliar with real estate matters. However, with time and study, attorneys can learn to properly draft new easements, interpret existing easements, explain to clients whether an easement may be implied, and advise them accordingly. Many matters concerning easements are relatively straightforward, such as drafting an express easement where the parties agree to the essential terms. However, other matters, particularly those involving the interpretation and recognition of an implied easement, may be extremely complex. In such cases, it may be prudent to seek the experience of or associate with counsel that is well-versed in resolving such disputes.

April D. Hendricks is an associate at Burns Figa & Will. She focuses her practice in the areas of water, environmental, and natural resources law. Coordinating Editor: Christopher D. Bryan .

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Notes

1. Wright v. Horse Creek Ranches, 697 P.2d 384, 387 (Colo. 1985).

2. Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1234 (Colo. 1998) (internal quotations omitted).

3. Id. See also Wright, 697 P.2d at 387.

4. Colorado Lawyer previously published a two-part series discussing various issues relating to the law of easements, Masters, “A Survey of Colorado Easement Law, Part 1,” 22 Colo. Law. 991 (May 1993), and Part 2, 22 Colo. Law. 1273 (June 1993). This article updates and expands on the concepts discussed in that series.

5. Lazy Dog Ranch, 965 P.2d at 1234.

6. See, e.g., Roaring Fork Club, L.P. v. St. Jude’s Co., 36 P.3d 1229, 1231 (Colo. 2001).

7. CRS § 37-86-102.

8. Osborn & Caywood Ditch Co. v. Green, 673 P.2d 380, 383 (Colo.App. 1983) (“[T]he owner of the easement, or dominant estate, may do whatever is reasonably necessary to permit full use and enjoyment of the easement including the exercise of rights of ingress and egress for maintenance, operation, and repair.”).

9. See Arrabelle at Vail Square Residential Condo. Ass’n, Inc. v. Arrabelle at Vail Square LLC, 382 P.3d 1275, 1277 (Colo.App. 2016).

10. Lewitz v. Porath Family Trust, 36 P.3d 120, 122 (Colo.App. 2001).

11. Id.

12. WRWC, LLC v. City of Arvada, 107 P.3d 1002, 1004 (Colo.App. 2004).

13. Sinclair Transp. Co. v. Sandberg, 350 P.3d 924, 931–32 (Colo.App. 2014).

14. Lazy Dog Ranch, 965 P.2d at 1238.

15. Id.

16. Bijou Irr. Dist. v. Empire Club, 804 P.2d 175, 183 (Colo. 1991).

17. City of Steamboat Springs v. Johnson, 252 P.3d 1142, 1146 (Colo.App. 2010). See also Restatement (Third) of Property: Servitudes § 1.3, cmt. 3 (Amer. Law Inst. 2020).

18. CRS §§ 38-30.5-101 et seq.

19. Carlson v. Bold Petroleum, Inc., 996 P.2d 751, 752 (Colo.App. 2000).

20. Gold Hill Dev. Co., L.P. v. TSG Ski & Golf, LLC, 378 P.3d 816, 829 (Colo.App. 2015).

21. Id.

22. Id. See also City of Lakewood v. Armstrong, 419 P.3d 1005, 1009 (Colo.App. 2017).

23. Id. (“[A]n extreme case of vagueness could result in a holding that no easement was granted.”).

24. See, e.g., Hornsilver Circle, Ltd. v. Trope, 904 P.2d 1353, 1356 (Colo.App. 1995).

25. Id. See also Armstrong, 419 P.3d at 1010.

26. Wagner v. Fairlamb, 379 P.2d 165, 167 (Colo. 1963).

27. Thompson v. Whinnery, 895 P.2d 537, 540 (Colo. 1995).

28. Id.

29. Bittle v. CAM-Colorado, LLC, 318 P.3d 65, 72 (Colo.App. 2012).

30. Wagner, 379 P.2d at 168.

31. LeSatz v. Deshotels, 757 P.2d 1090, 1092 (Colo.App. 1988) (declining to recognize easement by necessity where property owner could construct bridge over canal).

32. Lobato v. Taylor, 71 P.3d 938, 951 (Colo. 2002).

33. Id. at 951.

34. Proper v. Greager, 827 P.2d 591, 593 (Colo.App. 1992).

35. Id. at 593–94.

36. LR Smith Invs., LLC v. Butler, 378 P.3d 743, 746 (Colo.App. 2014).

37. Lobato, 71 P.3d at 950 (referencing Colorado’s adverse possession statute in an action to create an easement by adverse possession).

38. CRS § 38–41–101(3) to (4).

39. CRS § 38–41–101(5)(a).

40. Id.

41. Trask v. Nozisko, 134 P.3d 544, 550–51 (Colo.App. 2006).

42. Id.

43. LR Smith, 378 P.3d at 747.

44. Id.

45. Maralex Res., Inc. v. Chamberlain, P.3d 399, 404 (Colo.App. 2014).

46. LR Smith, 378 P.3d at 747.

47. Lobato, 71 P.3d at 950–51.

48. Id. at 951.

49. Id.

50. CRS § 38-35-110.

51. Id.

52. Bijou Irr. Dist., 804 P.2d 175; Story v. Bly, 217 P.3d 872, 878 (Colo.App. 2008).

53. Lazy Dog Ranch, 965 P.2d at 1238.

54. Id.

55. Westland Nursing Home, Inc. v. Benson, 517 P.2d 862, 867 (Colo.App. 1974).

56. Colo. Const. art. II, § 14; CRS § 38-41-102.

57. Lazy Dog Ranch, 965 P.2d at 1235.

58. Id. at 1237 (citing Restatement (Third) of Property § 4.1 cmt. c.).

59. Id.

60. Id. at 1236.

61. Id.

62. Wagner, 379 P.2d at 169.

63. Restatement (First) of Property §§ 477–479 (Amer. Law Inst. 1944).

64. Wright, 697 P.2d at 388.

65. Id. at 389.

66. Id.

67. Id. at 390.

68. Clinger v. Hartshorn, 89 P.3d 462, 467 (Colo.App. 2003).

69. Id. See also Hayes v. City of Loveland, 651 P.2d 466, 468 (Colo.App. 1982) (easements can accommodate changes in degree rather than kind).

70. Westpac Aspen Invs., LLC v. Residences at Little Nell Dev., LLC, 284 P.3d 131 (Colo.App. 2011) (citing Brush Creek Airport, L.L.C. v. Avion Park, L.L.C., 57 P.3d 738, 747 (Colo.App. 2002)).

71. Id. at 137.

72. Id.

73. Id.

74. Id.

75. Bear Creek Dev. Corp. v. Genesee Found., 919 P.2d 948, 955 (Colo. 1996).

76. Allen v. Nickerson, 155 P.3d 595, 601 (Colo.App. 2006).

77. Clinger, 89 P.3d at 468.

78. Matoush v. Lovingood, 177 P.3d 1262, 1271 (Colo. 2008) (“When an easement is created but never used, the easement holder’s property rights are said to remain ‘titular and dormant.’”) (citation omitted). 

79. Id. at 1269.

80. Id.

81. Id. at 1270.

82. Id.

83. Id.

84. Id. at 1271.

85. Romberg v. Slemon, 778 P.2d 315, 316 (Colo.App. 1989).

86. Id. at 316–17.

Reciprocal easements are commonly used in commercial settings, for example shopping centers or residential complexes with multiple buildings and tenants, to delineate access to and use of shared parking lots and common areas, public roads and walkways, and permissible signage locations.