Crystal v. Marrone

22CA0913 Crystal v Marrone 08-29-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0913

Summit County District Court No. 20CV30124

Honorable Mark D. Thompson, Judge

Holly Crystal,

Plaintiff-Appellant,

v.

Kathryn Marrone, Billy Joe North, Marilyn North, Gail M O’Malley Revocable

Trust, and Parkside Townhomes 1,

Defendants-Appellees.

JUDGMENT AFFIRMED IN PART, REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division III

Opinion by JUDGE SCHUTZ

J. Jones, J concurs

Johnson, J., concurs in part and dissents in part

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 29, 2024

Lewis Roca Rothgerber Christie LLP, Kendra N. Beckwith, Elizabeth Michaels,

Denver, Colorado; Gordon Rees Scully Mansukhani, LLP, Reagan Larkin,

Denver, Colorado, for Plaintiff-Appellant

Altitude Community Law P.C., William H. Short, Lakewood, Colorado, for

Defendants-Appellees

1

¶ 1 Plaintiff, Holly Crystal, appeals the district court’s judgment

entered against her and in favor of defendants, Kathryn Marrone,

Billy Joe North, and Marilyn North (collectively, the Norths), Gail M.

O’Malley Revocable Trust (O’Malley Trust), and Parkside

Townhomes 1 (the Association).

1

We reverse in part, affirm in part,

and remand for further proceedings.

I. Background

¶ 2 The Parkside subdivision is a small townhome development in

Frisco comprising four separate units and associated lots. The four

units are contained within a single structure; they share a common

roof and party walls. After building the structure, the developer

recorded the “Declaration of Covenants, Easements, Restrictions

and Homes Association Declaration” (Original Declaration) and

associated “Plat Map” of the subdivision. The Original Declaration

1

The caption of the pleadings in the district court and on appeal

name as a defendant “Parkside Townhomes 1.” But the operative

documents refer to “Parkside Townhomes I.” The parties also

sometimes refer to that defendant as “Parkside,” but generally refer

to it as “the Association,” which we do as well. The named

defendants are the Association and current and former unit owners

of lots in the Parkside subdivision.

2

created the Association, which is tasked with managing the

subdivision’s units.

¶ 3 The survey map taken from the Plat Map

2

and pictured below,

depicts the lots and building with the top of the reproduction

bearing generally north.

2

The Plat Map of the subdivision has been cropped and enlarged to

remove extraneous information, such as metes and bounds

directional bearings, and references to adjacent properties. We

have also highlighted the asserted common area in pink and the

area asserted to be encumbered by the Access and Utility Easement

in blue, as did the district court.

3

¶ 4 From west to east the four lots are 104A, 104B, 104C, and

104D. Lot 104A is on the eastern edge of the subdivision, Lot 104D

is on the western edge, and Lots 104B and 104C are in between.

The east-west property lines for each of the four lots extend from

the southern boundary to the northern boundary of the

subdivision. Thus, Lots 104A and 104D have a front yard, rear

yard, and one side yard. Lots 104B and 104C have just front and

rear yards.

¶ 5 At the time of construction, Lot 104A had a back door, but

Lots 104B, 104C, and 104D had no back door. A back door was

subsequently added to Lot 104B.

¶ 6 Each unit has an entry door and garage door located along the

south side of the building. A public street abuts the southern edge

of the property, and there is a shared driveway from this public

street that permits each lot owner to access their respective garage

doors and front entryways.

¶ 7 At the bottom of the Plat Map, just above the southern border

of the subdivision, are the words “ACCESS AND UTILITY

EASEMENT.” On either side of this phrase, there is a line that

traverses the portions of the lots that are located south of the

4

building, and both lines terminate with an arrow. One arrow ends

at a perpendicular line drawn from the southwest corner of the

building to the western border of Lot 104A, and the other ends at a

perpendicular line drawn from the southeast corner of the building

to the eastern border of Lot 104D.

¶ 8 The Plat Map illustrates the location of the shared driveway

that traverses portions of all four lots. The Plat Map also depicts

the locations of water lines, sewer lines, and electrical lines that

traverse each of the four lots. None of the platted easements or

utilities extend north of the southern edge of the building, except

for a small portion of the respective water lines that serve Lots 104A

and 104D.

¶ 9 The Original Declaration contains a recital clause stating,

Declarant desires to create and establish,

covenants, easements and restrictions on the

above described real property for the use and

benefit of themselves and grantees in order to

construct, sell and preserve PARKSIDE

TOWNHOMES I as a carefully protected

complex of four individually owned mountain

townhomes with the surrounding land on the

above described real property developed for

common use by the owners of said townhomes.

Paragraph 3 of the Declaration provides,

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The common area on the plat . . . shall be

subject to those easements for water, sewer

and electrical lines, pipes, conduits and poles

shown on said plat and each of the owners

thereof shall have free ingress and egress in,

from and over said easements for the purposes

of the maintenance and repair thereof.

Each owner shall be responsible for and shall

pay for the maintenance and repair of utilities

serving his townhome whether located on his

property or common area and for the water,

sewer and electricity utilized by him.

Ownership of each unit shall entitle the owner

or owners thereof to the right of ingress and

egress through common area to and from his

garage. Each owner shall be responsible for

the maintenance of his garage access

including, but not limited to, keeping the

pavement material in good repair.

¶ 10 Paragraph 4 of the Original Declaration provides that no

building, fence, wall, or other structure may be constructed on the

common area absent prior approval by the Association. Similarly,

paragraph 5 prohibits the parking of campers and the erection of

temporary structures in the common area.

¶ 11 Paragraph 6 states that the Association agrees to act as the

manager of the subdivision, and that the Association may “enter

into and upon the townhome when necessary, and at times which

6

cause the owner, . . . guests and invitees as little inconvenience as

possible.”

¶ 12 Despite these references to a “common area,” the Original

Declaration does not define that term, and neither the Declaration

nor the Plat Map identify where any “common area” is located.

Moreover, no portion of the subdivision is owned by the Association

or otherwise under common ownership. Instead, the land and unit

depicted on each lot are separately owned in fee by the owner of

each lot.

¶ 13 Since the subdivision’s creation, the Association has been

responsible for maintenance of the exterior of the building

(including painting, staining, and roof repair) and the driveway.

The Association also pays for mowing of the lawns, trimming and

removing diseased trees, and snow removal. The Association

imposes assessments on the unit owners to fund this maintenance

and repair work. The district court found that between 1983 and

2014, the Association performed its inspections and maintenance

responsibilities “without any dispute.” The court also found that

the individual unit owners consented to the traversing of the lots in

7

furtherance of the Association’s maintenance and repair

obligations.

¶ 14 Crystal purchased Lot 104A in 2014. Marrone purchased Lot

104B in 2015 and owned it through November 2020. The Norths

purchased Lot 104C in 1986 and owned it until the time of trial.

The O’Malley Trust has owned Lot 104D since 1983, and its

principal continuously lived there from 1983 until the time of trial.

A. The Access Disputes

¶ 15 Disputes over the use of the side and rear yards of Lot 104A

started before Crystal closed on her purchase. Three days before

the closing, the Association passed a resolution in which it

attempted to provide a definition of the term “common elements”

under the Original Declaration. The resolution stated that the Plat

Map “contains lot lines that seemingly conflict with” the Original

Declaration’s recital clause that the Parkside subdivision would be

a complex of “four individually owned mountain townhomes with

surrounding land developed for common use by the owners of said

townhomes.” The resolution purported to define “common

elements” as “[a]ll unimproved ground within the community.”

8

Crystal did not receive notice of the meeting at which the resolution

was adopted and did not attend.

¶ 16 The passage of the resolution resulted in communications

among the unit owners, the Association, and the Association’s legal

counsel about the substance of the resolution. The minutes from

the May 2015 Association meeting reflected the landowners’

agreement that “they own the respective lots as indicated on the

plat; however, the properties are subject to the declaration and

easements” and that the “easement at the front of the units is

already described in the declaration.” There were also discussions

about creating express easements along the side and rear of the

lots.

¶ 17 The dispute over access to the side and rear yards continued

over the next couple of years. Crystal contended that the

Declaration did not create any easements across her side and rear

yards. In a 2016 working session, the unit owners reiterated that

“we all own our individual lots” and that “there are no common

areas in [the Parkside subdivision].” The same meeting’s minutes

state that there is an existing easement that covers “the whole front

yard of all four units” and that the unit owners would “like to

9

establish an easement along the side and back perimeter of the lots

to allow Units B and C access to their backyards.”

¶ 18 Despite their discussion, the parties could not reach a

resolution on the creation of express easements across the side and

rear yards, and on one occasion, Crystal accused the other owners

of trespass when they traversed her side and rear yards without her

permission. Tensions escalated when the Association’s counsel

prepared an “Amended Declaration” that purported to permit the

Association and its members to “enter in or to cross over the

Easement Area on any Lot” for maintenance purposes and to access

the side and rear yards. The Amended Declaration did not describe

where the contemplated easements were located, and though it

attached a site map of a portion of the property, the site map did

not depict the location of any easements. The Association approved

the Amended Declaration by a three to one vote, with Crystal

casting the lone opposing vote.

B. The Trespass and Hot Tub Disputes

¶ 19 In the winter of 2019-20, ice and snow that had accumulated

on the roof of Lot 104B (owned by Marrone) fell onto Crystal’s front

deck. Crystal demanded that the Association and Marrone

10

remediate the problem. When they refused, Crystal threatened to

sue for trespass. Crystal also threatened legal action over the

adoption of the Amended Declaration.

¶ 20 At about this time, the Association also issued a notice to

Crystal asserting that she had violated the original covenants by

installing a hot tub without the Association’s approval.

C. The Litigation

¶ 21 Crystal filed suit against the Association and the unit owners,

asserting five claims: (1) slander of title; (2) breach of fiduciary duty;

(3) declaratory relief; (4) quiet title; and (5) trespass against

Marrone. The Association counterclaimed, alleging that Crystal had

failed to follow the covenants when she installed her hot tub.

¶ 22 Following a bench trial, the district court found in defendants’

favor on all claims. Crystal appeals, arguing that the district court

erred by (1) finding that the Original Declaration and Plat Map

created an express easement and/or common area across the side

and rear yards of Lot 104A; (2) declaring implied easements of

necessity and prescription across the side and rear yards of Lot

104A; (3) concluding that the Association had proved its

counterclaim regarding installation of the hot tub in violation of the

11

Declaration; (4) awarding defendants their costs and attorney fees;

and (5) wrongfully denying her trespass claim against Marrone.

Crystal also contends that, if the judgment is reversed, she is

entitled to an award of attorney fees and costs incurred in the

district court and on appeal.

3

II. The Express Easement

¶ 23 The district court began its analysis of the Association’s

express easement claim by reviewing the content of the Original

Declaration and Plat Map. The court noted that the Plat Map

contains the words “ACCESS AND UTILITY EASEMENT” along the

southern edge of the four lots, together with the extending arrows

previously described. The court determined that this was an

express access and utility easement created for the benefit of the

Association and that it traverses all four of the front yards of all

four lots, encompassing the area of the Plat Map, located on supra ¶

3, that is highlighted in blue.

3

Crystal did not address her slander of title or breach of fiduciary

duty claims on appeal, and therefore, neither do we. See People v.

Carr, 2016 COA 168, ¶ 14.

12

¶ 24 Based on the district court’s findings and conclusions, the

express Access and Utility Easement depicted on the Plat Map does

not encumber any portion of the side yards of Lots 104A and 104D,

nor any portion of the rear yards of Lots 104A, 104B, 104C, and

104D. And the court found that the Plat Map “does not label or

identify any other lands as ‘easements.’” None of the parties contest

these findings and legal conclusions.

¶ 25 After restricting the location of the express Access and Utility

Easement to the front of the four Lots, the district court went on to

analyze the Original Declaration’s use of the term “common area” to

assess whether that language — coupled with the Plat Map — could

be deemed to create an additional express easement. The court

began by noting that the recital clause of the Original Declaration

referred to “four individually owned mountain townhomes with the

surrounding land on the above described real property developed

for the common use by the owners of said townhomes.” The court

then turned to paragraph 3 of the Declaration, which provides that

“[t]he common area on the [Plat Map] . . . shall be subject to

easements for water, sewer and electrical lines, pipes, conduits and

poles shown on said [Plat Map] and each of the owners thereof shall

13

have free ingress and egress in, from and over said easements for

the purposes of maintenance and repair thereof.” The court also

noted the same paragraph provides that each unit owner shall be

entitled to “right of free ingress and egress through common area to

and from his garage.” But the court also noted that the term

“common area” does not appear on the Plat Map and is not defined

in the Original Declaration.

¶ 26 Nevertheless, the court returned to the recital clause to infer

that the developer intended that although each lot owner would

have fee title to their property, all the surrounding land — including

all front, side, and rear yards — would be burdened with an express

easement benefitting the Association and unit owners to access the

townhome and rear yards for installation, upkeep, repair,

construction, and replacement and for improvements of the

buildings, utilities, and lots. The court also “construe[d] the term

‘common area’ as used in the Original Declaration to include the

areas lying outside of the Access and Utility Easement [i.e., the pink

highlighted area of the Plat Map, supra, ¶ 3], exclusive of the

building’s footprint.”

14

¶ 27 Crystal does not challenge the existence of an express

easement across the front yard of Lot 104A for purposes of ingress,

egress, access to and from the units and associated garages,

utilities, and maintenance. But she argues that the terms of the

Original Declaration and Plat Map, read alone and in combination

with one another, provide no express easement beyond the front

yards of the four lots. Relatedly, she argues that the Original

Declaration and Plat Map do not create any “common area” across

her side and rear yards. Thus, she argues, the district court erred

as a matter of law by determining that an express easement and

common area exist across the side and rear yards of Lot 104A. We

agree.

A. Standard of Review and Applicable Law

¶ 28 The district court’s conclusion that the side and rear yards of

Crystal’s lot are subject to an express easement or are a common

area presents a mixed question of fact and law. We review the

district court’s factual findings for clear error and its legal

conclusions de novo. Gold Hill Dev. Co., L.P. v. TSG Ski & Golf, LLC,

2015 COA 177, ¶ 7. Under the clear error standard, we will not

disturb the court’s factual findings if there is any evidence in the

15

record supporting them. Woodbridge Condo. Ass’n v. Lo Viento

Blanco, LLC, 2020 COA 34, ¶ 24, aff’d, 2021 CO 56.

¶ 29 The construction and meaning of the language in a

conveyancing instrument presents a question of law that we review

de novo. Owens v. Tergeson, 2015 COA 164, ¶ 17 (“The

interpretation of a deed and the determination of whether it is

ambiguous are questions of law subject to de novo review by this

court.”).

¶ 30 “An interest in real property, including an express easement,

must be created by act or operation of law or [be] contained in a

deed or conveyance . . . subscribed by the party creating or

assigning the interest . . . .” City of Lakewood v. Armstrong, 2017

COA 159, ¶ 9; see § 38-10-106, C.R.S. 2024 (statute of frauds). An

easement may be created by grant, prescription, or necessity, and

once created, authorizes one to do or maintain something on the

land of another. Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d

1229, 1234 (Colo. 1998). “The property burdened by the easement

is customarily known as the ‘servient estate,’ while the property

benefited by the easement is called the ‘dominant estate.’” Id. An

easement holder’s rights are measured by the nature and purpose

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of the easement. Id. The owner of the servient estate enjoys all the

rights and benefits of ownership consistent with the burden of the

easement; the rights of the owner of the dominant estate are limited

to those allowed by the easement. Id.

¶ 31 The extent and scope of an express easement is determined by

interpreting the conveyance instrument. Id. at 1235. “Words that

clearly show the intention to grant an easement are adequate to

demonstrate its creation, provided the language in the instrument

is sufficiently definite and certain.” City of Lakewood, ¶ 10. No

particular words are necessary, but the instrument “must identify

with reasonable certainty the easement created and the dominant

and servient tenements.” Hornsilver Circle, Ltd. v. Trope, 904 P.2d

1353, 1356 (Colo. App. 1995). “As a nonpossessory interest, an

easement does not require the precise description that a possessory

interest does.” City of Lakewood, ¶ 10.

¶ 32 “To determine whether an easement has been expressly

granted — and, if it has, the extent of such easement — we look

first to the deed or other conveyance instrument, construing it to

ascertain the parties’ intent.” Gold Hill Dev. Co., ¶ 48 (citing Lazy

Dog, 965 P.2d at 1235).

17

¶ 33 We must interpret an easement by considering (1) the

language used in the instrument; (2) the circumstances

surrounding its creation; and (3) the purpose for which it was

created. Lewitz v. Porath Fam. Tr., 36 P.3d 120, 122 (Colo. App.

2001); see also Lookout Mountain Paradise Hills Homeowners’ Ass’n

v. Viewpoint Assocs., 867 P.2d 70, 75 (Colo. App. 1993) (“Restrictive

covenants must be construed as a whole and interpreted in view of

their underlying purposes, giving effect to all provisions contained

therein.”).

B. Analysis of the Original Declaration and Plat Map

¶ 34 Applying these principles, we agree with the district court’s

conclusion that the Original Declaration and Plat Map create an

express easement for ingress, egress, access to and from the units

and associated garages, utilities, and maintenance. The Plat Map

clearly depicts the express easement as encompassing the lots’ front

yards. But we conclude that the Plat Map equally clearly

establishes that the Access and Utility Easement does not extend to

the side or rear yards of the four lots. Indeed, as previously noted,

the arrows depicting the location of the Access and Utility Easement

extend across all four front yards; all utilities are located within the

18

four lots (except for small portions of the water service lines serving

104A and 104D); and the driveway, garage, and front doors of the

units are all located on the front of the building. Consistent

therewith, the arrows depicting the Access and Utility Easement

terminate at dotted lies extending from the face of the building in a

perpendicular direction to the eastern and western boundaries of

the subdivision.

¶ 35 Based on the clear notations of the Plat Map, we conclude that

the only express easement that exists on the lots is across only the

front yards. Stated otherwise, the Plat Map illustrates the

developer’s clear intent to limit the express Access and Utility

Easement to the front of the lots, and an equally clear intent not to

extend the Access and Utility Easement into the lots’ side or rear

yards.

¶ 36 The existence and specific location of the Access and Utility

Easement also illustrate that the developer knew how to create and

locate an express easement. And the Plat Map depicts no

easements other that the Access and Utility Easement. These facts

counsel against the expansion of the express Access and Utility

Easement by implication or interpretation.

19

¶ 37 Nor are we persuaded that the Original Declaration’s

references to “common use” and “common area” support a

conclusion that the developer intended to extend an express

easement or a common area across the side and rear yards of the

lots. As the district court noted, the Original Declaration does refer

to common area, but it does so in the context of referring to the

utilities and access for ingress and egress to and from the public

road to the respective units’ garages and doors. And these

improvements are all located within the confines of the Access and

Utility Easement that encumbers the lots’ front yards. Thus, these

references to common area actually support limiting the location of

the express easement and any common area to the front yards as

depicted on the Plat Map.

¶ 38 In our view, the plain and unambiguous language of the

Original Declaration and Plat Map create an express Access and

Utility Easement across the front of all four lots for the purposes

previously stated, and it creates no other express easements or a

“common area” independent of the building and the lots’ front

yards. Based on this conclusion, the district court’s analysis of the

express easement claim should have ended.

20

¶ 39 But rather than stopping its analysis at this point, the district

court determined that the Original Declaration’s references to the

“common use of surrounding property” and a “common area”

rendered the location of the Access and Utility Easement and the

“common area” ambiguous. Perceiving an ambiguity, the court

proceeded to consider the historical use of the property by the

Association and unit owners and the circumstances existing at the

time of platting to determine the intended location of the Access and

Utility Easement.

¶ 40 The intention to create an express easement must be

definitively stated:

Words 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. The writing must contain a

description of the land that is to be subjected

to the easement with sufficient clarity to locate

it with reasonable certainty.

Hornsilver, 904 P.2d at 1356 (citations omitted). If a conveying

instrument is sufficiently clear to express the grantor’s intent to

create an express easement, but its precise contours are not clear,

the precise contours of the easement’s location may be determined

21

based on the historical use of the property. See, e.g., Stevens v.

Mannix, 77 P.3d 931, 933 (Colo. App. 2003) (“If a valid easement is

granted without fixing in writing its location, the location may be

determined based on the conduct of the parties.”); Gjovig v. Spino,

701 P.2d 1267, 1268 (Colo. App. 1985) (looking to historical use of

the easement where there was no precise description of the

easement’s location of ingress and egress over the servient estate).

But these principles may not be utilized to create an express

easement where the conveyancing instrument(s) — in this case, the

Original Declaration and Plat Map — specifically delineate the

location of the easement in question. Here, they do just that,

limiting the Access and Utility Easement and any common area to

the front yards.

¶ 41 Nonetheless, the district court proceeded to consider the

parties’ historical use of the lots and whether such historical use

evidenced an intent to include the side and rear yards as part of the

Access and Utility Easement or common area. The court found that

the owners of Lots 104B and 104C occasionally used the side and

rear yards of Lot 104D to access their rear yards. And the court

also found that the Association and unit owners occasionally

22

traversed the side and rear yards to perform maintenance on the

lawns and trees and the building’s exterior (such as painting and

staining). But the court also found that these limited uses occurred

with the individual unit owner’s consent. Thus, such usage is

consistent with a limited license from the individual owner rather

than a recognition that their side and rear yards were part of a

common area or subject to the Access and Utility Easement.

¶ 42 The district court also grounded its extension of the Access

and Utility Easement and common area by reference to the fact

that, at the time of platting, only Lot 104A had a back door that

allowed access to its rear yard. That fact was undisputed. But it

doesn’t lead to the conclusion that the developer intended to extend

the Access and Utility Easement beyond its illustrated points of

termination, as depicted on the Plat Map.

¶ 43 Moreover, it does not follow from the absence of an existing

back door that the other three units were deprived of access to their

rear yards. Indeed, the O’Malley Trust unit has always enjoyed

access to its rear yard from the Access and Utility Easement and

the use of Lot 104D’s side lot and rear yard. And after the units

were constructed, one of the owners of Lot 104B installed a back

23

door to their unit providing direct access to their rear yard. The

trial produced no evidence that the owner of Lot 104C is prohibited

from installing a similar back door to access their rear yard.

Perhaps they have chosen not to for aesthetic or financial reasons,

or simply because — as the undisputed evidence established —

they have always been granted permission to access their rear yard

by the owner of Lot 104D. In any event, as the facts illustrate, the

absence of back doors on three of the units at the time of platting

does not support a conclusion that the developer intended to extend

the easement or common area across the side or rear yards of the

lots.

¶ 44 In sum, neither the language of the Original Declaration and

Plat Map, the circumstances existing at the time the easement was

created, nor the historical use of the lots supports the district

court’s legal conclusion that the developer intended either the

Access and Utility Easement or the common area to extend into the

side or rear yards of Lot 104A. To the contrary, the clear controlling

language of the Original Declaration and Plat Map establish that the

Access and Utility Easement and common area encumber only the

lots’ front yards. By declaring that the side and rear yards are

24

encumbered by an Access and Utility Easement and part of a

common area, the district court erred as a matter of law.

C. Analysis of the Amended Declaration

¶ 45 After concluding that the Access and Utility Easement and

common area encompassed the side and rear yards, the court

turned to the enforceability of the Amended Declaration. The

Amended Declaration was recorded in May 2020, after it was

approved by Marrone, the Norths, and the O’Malley Trust over

Crystal’s objection. The Amended Declaration did not purport to

define or designate any common area. But it included the following

definitions of “Easement Area” and “Map”:

(h) “Easement Area” shall mean that area

depicted on the Map of the Association and

which is attached hereto and incorporated

herein by reference. The Easement Area shall

be owned in fee simple by the Owners of the

Lot and not by the Association as common

area as that term is defined in [the Colorado

Common Interest Ownership Act].

. . . .

(k) “Map” . . . shall mean and refer to the

map(s) and/or plat(s) of the Property and

improvements that are subject to this

Declaration and which are designated in the

Map or Plat recorded in the records of the

25

Office of the Clerk and Recorder of Summit

County.

As the district court noted, the only map attached to the Amended

Declaration was a site plan that it characterized as the “Snow

Storage Map.” In any event, that attached document did not depict

any lot lines or easement areas. Moreover, as addressed above, the

Plat Map did not depict any easement area beyond the lots’ front

yards. Nevertheless, the district court concluded that the

“Easement Area” described in the Amended Declaration extended to

the entirety of the front, side, and rear yards of all four lots in the

subdivision.

¶ 46 From this conclusion, the court reasoned that the Easement

Area purportedly created by the Amended Declaration was

“consistent and coextensive with the nature, scope, purpose and

area, and [did] not operate to expand, the express and implied

easements encumbering Lot 104A” under the Original Declaration

and Plat Map. In other words, having previously concluded that the

Access and Utility Easement and common area encompassed the

front, side, and rear yards of all lots, the court concluded that the

Amended Declaration simply created coextensive easements in the

26

same location, and thus rejected Crystal’s argument that the

Amended Declaration was passed in violation of her due process

rights.

¶ 47 We reject the district court’s conclusion regarding the

Amended Declaration for multiple reasons. First, we have

previously concluded that the Original Declaration and Plat Map did

not create an easement or common area on the side or rear yards of

the lots. Thus, to the extent that the Amended Declaration

purports to create an easement on the side and rear yards, it must

stand on its own. Second, the only document attached to the

Amended Declaration was the site plan that depicted no easements.

¶ 48 Third, the fact that the Association elected to create and file an

Amended Declaration to create an express easement that already

existed under the Original Declaration and Plat Map is illogical. At

the very least, the creation of the Amended Declaration illustrates

that the unit owners and Association were not confident that the

Original Declaration and Plat Map were sufficiently definite and

certain to create an express easement. And contrary to the district

court’s finding that the side and rear yards were part of a common

27

area, the Amended Declaration does not purport to identify or

create any common area across any property.

¶ 49 Finally, and most importantly, even if the uncertainties

created by the Amended Declaration’s language and its attachment

could be overcome, reading these documents in a manner that

places an access and utility easement on Crystal’s property would

amount to a taking of Crystal’s property without due process of law.

¶ 50 As a quasi-governmental body, the Association must enforce a

declaration in a manner that complies with due process. See C & C

Invs., LP v. Hummel, 2022 COA 42, ¶ 40. The Association points to

no authority, and we are aware of none, that permits an Association

to place an express easement on a unit owner’s property without

the owner’s consent. An express easement is created by an

appropriate conveyance from the property owner to the beneficiary.

Gold Hill Dev. Co., ¶ 47. That fundamental principle does not

disappear in lots located within a homeowner’s association’s

jurisdiction. Thus, the fact that the Amended Declaration was

approved by a majority vote of the Association’s members is

inconsequential. The only person who could approve the creation of

an express easement across Crystal’s property was Crystal.

28

¶ 51 In sum, the Amended Declaration did not reiterate an express

easement or common area on Lot 104A’s side and rear yards

because no such easements or common area existed prior to the

filing of the Amended Declaration. Second, the Amended

Declaration could not and did not create an easement or common

area across Lot 104A’s side and rear yards without Crystal’s

consent. Thus, the district court erred by concluding that the

Amended Declaration either created or confirmed an express

easement and common area across the side and rear yards of Lot

104A.

III. Implied Easements

¶ 52 In addition to finding of express easement, the district court

also concluded that the side and rear yards of the lots are

encumbered by an “implied easement of necessity” to “access the

sides and rear areas of the [l]ots for general use and to perform

installation, maintenance, repair, upkeep, and replacement of the

improvements located upon their lots.” The court also found that

the Association and unit owners had established an “easement by

prescription.” The court did not, however, define the location or

permitted uses associated with the prescriptive easement.

29

¶ 53 In reaching these conclusions, the court cited no legal

authority setting forth the elements necessary to establish an

easement by necessity or a prescriptive easement.

A. Standard of Review

¶ 54 As with an express easement, the district court’s findings of

implied easements by necessity and prescription present mixed

questions of fact and law. See Fear v. GEICO Cas. Co., 2023 COA

31, ¶ 15 (“We review a trial court’s judgment entered following a

bench trial as a mixed question of fact and law.”) (cert. granted Feb.

26, 2024).

B. Applicable Law

¶ 55 To establish an easement by necessity, a claiming party must

establish each of the following elements: (1) unity and subsequent

separation of title; (2) obvious benefit to the dominant and burden

to the servient tenement existing at the time of the conveyance; and

(3) necessity for the easement. Wagner v. Fairlamb, 379 P.2d 165,

168 (Colo. 1963). In Wagner, the supreme court noted that the

“third requirement is that the necessity for the particular right-of-

way be great.” Id.

30

¶ 56 To establish a prescriptive easement, a party must establish

that “the prescriptive use is: 1) open or notorious; 2) continued

without effective interruption for the prescriptive period; and 3) the

use was either a) adverse or b) pursuant to an attempted, but

ineffective grant.” Lo Viento Blanco, 2021 CO 56, ¶ 16 (quoting

Lobato v. Taylor, 71 P.3d 938, 950 (Colo. 2001)). In the context of a

prescriptive easement, the term adverse means

a use made without consent of the landowner,

or holder of the property interest used, and

without other authorization. Adverse uses

create causes of action in tort for interference

with property rights. The causes of action are

usually actions for trespass, nuisance, or

waste. [Such] uses are adverse or hostile to

the property owner in the ordinary sense of the

words.

Restatement (Third) of Prop.: Servitudes § 2.16 cmt. b (Am. L. Inst.

2000)); Lo Viento Blanco, ¶ 20.

¶ 57 As noted, the district court made no factual findings to

support its conclusion that the defendants established any of these

elements. But based on the undisputed facts, we conclude, as a

matter of law, that the evidence was insufficient to establish an

easement by necessity or prescription.

31

C. Analysis of Implied Easements

1. Prescriptive Easement

¶ 58 We conclude that the undisputed facts do not support a

finding that there was adverse use of the side or rear yards of Lot

104A for the prescriptive period of eighteen years. See § 38-41-

101(1), C.R.S. 2024 (Colorado’s period of prescription is eighteen

years); Lobato, 71 P.3d at 954. As the district court found, between

1983 and 2014, there was no evidence of any objection from any

party to the use of any portion of the lots. Thus, any use of the side

and rear yards was consensual and not adverse during this period.

Even if we assume, for sake of argument, that the unit owners and

Association used the side and rear yards of Lot 104A without

Crystal’s consent, Crystal did not acquire Lot 104A until 2014,

eight years before the trial. Any adverse use of Lot 104A during this

period was therefore insufficient to demonstrate the eighteen-year

period of adverse use required to establish a prescriptive easement.

¶ 59 Moreover, the district court provided no analysis of the

particular adverse use that may have been made of Lot 104A or how

any such use justified its finding of a prescriptive easement for

32

“general use and to perform installation, maintenance, repair,

upkeep and replacement of the improvements located on [the lots].”

¶ 60 In sum, the district court’s finding of a prescriptive easement

across the side and rear yards of Lot 104A is not supported by the

court’s factual findings, and the undisputed facts refute, as a

matter of law, the court’s finding of a prescriptive easement across

Lot 104A.

2. Easement by Necessity

¶ 61 We also conclude that the undisputed facts fail to establish

the existence of an easement by necessity. First, the undisputed

evidence at trial established that the O’Mally Trust has always

permitted the owners of Lots 104B and 104C to cross the side and

rear yards of Lot 104D to access their rear yards. And, of course,

the O’Malley Trust unit owners have direct access to their rear yard.

Moreover, Lot 104B now has a back door that provides direct access

to the lot’s rear yard. And there was no showing that a similar door

could not be installed by the owner of Lot 104(c).

¶ 62 As previously noted, the district court found that the unit

owners have historically cooperated in permitting the Association’s

maintenance and upkeep of the building and lots. Thus, there was

33

insufficient evidence to support a finding that extending the express

Access and Utility Easement across the side and rear yards was

necessary to permit maintenance and upkeep of the exterior of the

building or the lots.

¶ 63 Under these circumstances, we conclude there was insufficient

evidence to show that an easement was necessary for the owners to

obtain access to their rear yards or for the Association to maintain

and repair the buildings and lots, and therefore, the evidence

certainly did not show the type of “great necessity” that would

establish an easement by necessity. See Wagner, 379 P.2d at 168.

Thus, the district court erred as a matter of law by finding an

easement by necessity across the side and rear yards of Lot 104A.

IV. Hot Tub

¶ 64 Crystal contends that the district court erred by concluding

that the Association proved its claim that she breached the

covenants by failing to seek and obtain the Association’s approval

prior to installing the hot tub.

A. Additional Facts

¶ 65 Without seeking prior approval from the Association, Crystal

installed a hot tub in her rear yard. The Association sent her a

34

demand letter. While that demand was pending, Crystal filed this

lawsuit. Defendants filed a counterclaim to enforce the prior

approval provisions of the Original Declaration and Amended

Declaration. Crystal complied with the Association’s permitting

requirements after the counterclaim was filed but before trial. In its

judgment, the district court concluded that the Association had

proved “its counterclaim for a breach of covenants” and was entitled

to attorney fees in pursuing the counterclaim.

B. Analysis

¶ 66 The parties dispute whether this issue was preserved and, if

so, whether the Association provided Crystal with due process in

accordance with its enforcement policy. We need not resolve this

dispute because we conclude the claim is moot.

¶ 67 In her opening brief, Crystal argues that “[t]he purported hot

tub violation was resolved during litigation, rendering the

counterclaim moot.” We agree that this claim was rendered moot

by the parties’ settlement, except for its possible impact on the

attorney fees issues in this case. See Dahlem v. Bd. of Educ. of

Denver Pub. Schs., 901 F.2d 1508, 1512 (10th Cir. 1990) (“While a

claim of entitlement to attorney’s fees does not preserve a moot

35

cause of action, the expiration of the underlying cause of action

does not moot a controversy over attorney’s fees already incurred.”)

(citations omitted).

¶ 68 “Courts must confine their exercise of jurisdiction to cases

that present a live case or controversy.” Davidson v. Comm. for Gail

Schoettler, Inc., 24 P.3d 621, 623 (Colo. 2001). “A case is moot

when a judgment, if rendered, would have no practical legal effect

upon the existing controversy.” Van Schaack Holdings, Ltd. v.

Fulenwider, 798 P.2d 424, 426 (Colo. 1990). “The general rule is

that when issues presented in litigation become moot because of

subsequent events, an appellate court will decline to render an

opinion on the merits of an appeal.” Id. at 426-27.

¶ 69 Crystal complied with the Association’s prior approval policy

after the counterclaim was filed but before trial. This resolved the

merits of the enforceability of the covenant at issue, and any

defenses related thereto. Thus, the various covenant interpretation

and due process issues raised by Crystal in her briefing on appeal

are all moot.

¶ 70 The only issue that remains on the counterclaim is whether

either party is entitled to recover its related costs and attorney fees.

36

We address this issue, and the parties’ additional claims for

attorney fees for various other claims, in a companion opinion,

Crystal v. Marrone, (Colo. App. No. 22CA1847, Aug. 29, 2024) (not

published pursuant to C.A.R. 35(e)) (Crystal II).

V. Trespass

¶ 71 Crystal contends that the district court wrongfully denied her

trespass claim. We disagree.

A. Additional Facts

¶ 72 The building’s gabled roof slopes downward over Lot 104B and

then extends over the party wall such that the eve of the roof is

above Lot 104A. Crystal expanded her front deck so that it now

extends past the roof overhang of Lot 104B. The accumulated snow

and ice from Lot 104B’s roof now sometimes falls onto Crystal’s

extended deck and adjacent landscaping on the front side of Lot

104A. Crystal brought this to Marrone’s attention, who declined to

address the issue, noting that the roof at issue traverses the

property boundary between Lots 104A and 104B and was thus not

her responsibility.

¶ 73 The current roof design between Lots 104A and 104B is the

same as the shared roofs between the other units, and there is no

37

evidence that Marrone constructed, modified, or otherwise altered

the roof between the two units.

B. Standard of Review and Applicable Law

¶ 74 Whether an improvement that causes a natural element to

flow onto another’s property constitutes a continuing trespass is a

question of law that we review de novo. Sanderson v. Heath Mesa

Homeowners Ass’n, 183 P.3d 679, 682 (Colo. App. 2008).

¶ 75 A trespass is a physical intrusion upon the property of another

without permission from the person legally entitled to possession of

that property. Public Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377,

389 (Colo. 2001). “A landowner who sets in motion a force which,

in the usual course of events, will damage property of another is

guilty of a trespass on such property.” Hoery v. United States, 64

P.3d 214, 217 (Colo. 2003).

¶ 76 A trespass may be isolated to a single occurrence, continuing,

or permanent in nature. Id. at 218. Generally, a party has the

obligation to remediate an isolated or continuing trespass that they

created. Sanderson, 183 P.3d at 682. But in exceptional

circumstances — for example, an irrigation ditch or a railroad — a

continuing trespass may be allowed to exist indefinitely, thereby

38

creating a permanent trespass. Hoery, 64 P.3d at 220. A

permanent trespass must be a socially beneficial structure

constructed with “lawful authority” and intended to be permanent.

Id.

C. Analysis

¶ 77 On appeal, both parties rely on Cobai v. Young, 679 P.2d 121

(Colo. App. 1984). In Cobai, snow and other materials from the

defendants’ roof fell onto the Cobais’ home. Id. at 123. The Cobais’

house was built in the 1930s in Crested Butte, which averages

between 300 and 500 inches of snowfall annually. Id. The

defendants built their home in the 1970s based on new zoning

setback requirements resulting in both the roofs sloping toward one

another. Id. Because the Cobais’ house was one story and the

defendants’ house was two stories, the sliding snow from the

defendants’ house would strike the Cobais’ house causing

thunderous noise, jarring, nonstructural damage, and potential

future structural damage. Id.

¶ 78 A division of this court concluded that the trespass was

continuing because “[a] landowner who sets in motion a force

which, in the usual course of events, will damage property of

39

another is guilty of trespass on such property.” Id. (quoting Miller v.

Carnation Co., 516 P.2d 661, 664 (Colo. App. 1973)). The division

also concluded the district court properly found the “defendants

control on their property [to be] an instrumentality which sets in

motion a force which, in the usual course of events, will damage the

Cobais’ property.” Id. Thus, the division affirmed the court’s ruling

granting a permanent injunction prohibiting the defendants from

allowing snow to slide off their roof onto the Cobais’ property. Id. at

122-23.

¶ 79 Crystal argues that because Marrone controls the

instrumentality (i.e., the roof of Lot 104B’s unit) that sets the snow

into motion, the elements of a continuing trespass are proven. In

rejecting the trespass claim, the district court reasoned,

[T]here is no evidence that Ms. Marrone

engaged in an intentional act on her

property — Lot 104B — that set the snow and

ice in motion. Ms. Marrone acquired Lot 104B

as originally constructed and as part of the

building enclosing the dwelling unit on Lot

104A. There is no evidence that Ms. Marrone

modified, altered, or constructed any

improvement on the roof of Lot 104B that set

the snow and ice in motion. Rather, the snow

and ice accumulated on the original roof over

both Lot 104B and Lot 104A and slid off in the

40

natural course and not as a result of any

action by Ms. Marrone.

¶ 80 We perceive no error in this analysis. Marrone did not put

into action the mechanics by which snow fell onto Crystal’s deck,

because the roof was built in 1983, and there was no evidence that

Marrone modified or updated the roof. In short, Marrone did

nothing to create the roof conditions that caused snow to be

projected onto Crystal’s property. Moreover, it appears such snow

sloughing has occurred from the time the building was constructed

and only became an issue when Crystal extended her deck to the

point that a portion of it was located beneath the point where the

snow naturally fell from the roof. Given these undisputed facts, we

perceive no error in the district court’s rejection of Crystal’s

trespass claim.

VI. Attorney Fees

¶ 81 We address all attorney fee issues arising out of the

litigation — whether at the district court or appellate level — in

Crystal II.

41

VIII. Conclusion

¶ 82 We reverse that portion of the district court’s judgment finding

the existence of an express easement, a prescriptive easement, or

an easement by necessity on the side and rear yards of Lot 104A.

We also reverse the district court’s finding that the side and rear

yards of Lot 104A are common areas. We dismiss as moot Crystal’s

challenge to the merits of whether she violated the covenants by

installing the hot tub. And we affirm the district court’s entry of

judgment against Crystal on her trespass claim. Finally, we resolve

the parties’ competing claims for attorney fees in Crystal II.

JUDGE J. JONES concurs.

JUDGE JOHNSON concurs in part and dissents in part.

42

JUDGE JOHNSON concurring in part and dissenting in part.

¶ 83 I agree with the majority’s analysis in Parts IV (Hot Tub) and V

(Trespass). But I disagree with the majority’s conclusion that the

Access and Utility Easement identified in the Plat Map and Original

Declaration is limited to the front of all four lots and creates no

other express easements or “common area” extending to the sides

and part of the back of the lots. Because I conclude that there was

an express easement, I respectfully dissent from Part II (The

Express Easement) and therefore do not need to reach Part III

(Implied Easements). Finally, for the reasons laid out in the opinion

in the companion appeal involving the attorney fees issue, I also

dissent from Part VI (Attorney Fees). I would, therefore, affirm the

district court’s order, albeit on slightly different grounds.

¶ 84 I conclude that the Plat Map and Original Declaration

construed together create an express easement on the “common

area” of the Plat Map that extends the current Access and Utility

Easement to the sides of Lots 104A and 104D for ingress and egress

to the individual lot’s backyards for the limited purpose of

performing maintenance, inspection, repair, installation, and

43

upkeep as needed; to access the townhomes; and to reach or

facilitate access to the rear of the lots.

¶ 85 The majority is correct that the line representing the Access

and Utility Easement on the Plat Map does not extend beyond

Crystal’s side and backyard. But based on the language of the

Original Declaration, as interpreted with the Plat Map, as well as

the construction of the Parkside subdivision at the time the Original

Declaration was recorded, and the historical use, the district court

properly determined that the conveyance documents establish an

express easement that extends the Access and Utility Easement

around the side of the lots and to the rear yards. I do not agree

with the district court, however, that the easement encompasses

the entirety of the lots’ backyards. I reach these conclusions for

three reasons.

I. Plat Map and Original Declaration

¶ 86 First, the Plat Map read in conjunction with the Original

Declaration creates an express easement that extends through the

side lots to the rear of the building. Paragraph 1 of the Original

Declaration incorporates by reference the Plat Map. And the

Original Declaration must be harmonized with the Plat Map. See

44

Snowmass Land Co. v. Two Creek Homeowner’s Ass’n, 159 P.3d

662, 663 (Colo. App. 2006). The majority contends and the Plat

Map demonstrates that the arrows depicting the Access and Utility

Easement terminate at the dotted lines that extend from the face of

the building. But this interpretation fails to harmonize the Plat

Map with the Original Declaration. See Lookout Mountain Paradise

Hills Homeowners’ Ass’n v. Viewpoint Assocs., 867 P.2d 70, 75

(Colo. App. 1993) (“[C]ovenants must be construed as a whole and

interpreted in view of their underlying purposes, giving effect to all

provisions contained therein.”). Simply because the Plat Map,

standing alone, does not denote the exact location of an easement

extending to the side yards of Lots 104A and 104D and around to

the back north area of Lots 104B and 104C does not mean an

easement does not exist in those areas. See City of Lakewood v.

Armstrong, 2017 COA 159, ¶¶ 10-11 (“As a nonpossessory interest,

an easement does not require the precise description that a

possessory interest does. . . . [A] lack of specificity in describing an

easement’s location will ordinarily not invalidate it. The general

rule is that vagueness in describing the easement ‘does not go to

the existence or validity of an easement,’ but ‘an extreme case of

45

vagueness could result in a holding that no easement was

granted.’”) (citations omitted).

¶ 87 The Original Declaration begins with a “whereas” clause that

defines the Parkside subdivision “as a carefully protected complex

of four individually owned mountain townhomes with the

surrounding land on the above described real property developed for

common use by the owners of said townhomes.” (Emphasis added.)

This clause contemplates that the general plan of development was

to subject the common area to use by all unit owners and that such

common area was to include the surrounding land.

¶ 88 Although the term common area is undefined, it is partially

clarified in paragraph 3 of the Original Declaration:

The common area on the plat of Parkside

Townhomes I (sic) shall be subject to those

easements for water, sewer and electrical lines,

pipes, conduits and poles shown on said plat

and each of the owners thereof shall have free

ingress and egress in, from and over said

easements for the purposes of maintenance

and repair thereof.

(Emphasis added.) And that same paragraph also says, “Ownership

of each unit shall entitle the owner or owners thereof the right of

46

ingress and egress through common area to and from his garage.”

(Emphasis added.)

¶ 89 Paragraph 6 of the Original Declaration identifies the

Association as the manager of the development, which has the right

“[t]o enter into and upon the townhome when necessary, and at

times which cause the owner, his guests and invitees as little

inconvenience as possible.” And paragraph 6 also indicates that

the Association has access to complete its performance obligations,

including maintenance, repair, inspections, and upkeep of the

multi-unit townhomes. See Kroesen v. Shenandoah Homeowners

Ass’n, 2020 COA 31, ¶ 31 (“We give words and phrases their

common meanings and will enforce recorded instruments as written

if their meaning is clear.”); see also Lazy Dog Ranch v. Telluray

Ranch Corp., 965 P.2d 1229, 1237 (Colo. 1998) (“[T]he language

used in creating a servitude ordinarily should be interpreted to

accord with the meaning an ordinary purchaser would ascribe to it

in the context of the parcels of land involved.”) (citation omitted);

Restatement (Third) of Prop.: Servitudes § 2.14(2)(a) (Am L. Inst.

2000) (“Language of condition that creates a restriction or other

obligation, in order to implement the general plan, creates an

47

implied servitude imposing the same restriction or other

obligation.”).

¶ 90 Reading the “whereas” clause, paragraph 3, and paragraph 6

together in conjunction with the Plat Map, it is reasonably certain

that the surrounding land is for the “common use” of the unit

owners to access their rear yards and for the Association to perform

its duties. See Pulte Home Corp. v. Countryside Cmty. Ass’n, 2016

CO 64, ¶ 23 (we must read covenants as a whole to harmonize and

effectuate all provisions). Without the express easement, all the

unit owners would have access to their units from the south portion

of the property but only the corner lots would be able to reach their

rear yards. Therefore, the term “access” must refer to something

greater than just access to the south portion of the property. See

Lewitz v. Porath Fam. Tr., 36 P.3d 120, 122 (Colo. App. 2001) (“[W]e

must consider the language used in the instrument, the

circumstances surrounding its creation, and the purpose for which

it was created.”). Indeed, I agree with the district court’s conclusion

that reading the Original Declaration and Plat Map together to limit

unit owners’ use of the Access and Utility Easement to the south

side of the building would “render much of the exterior of the

48

building inaccessible and all of the rear yards of two the Lots

entirely without any access.” See Gold Hill Dev. Co., L.P. v. TSG Ski

& Golf, LLC, 2015 COA 177, ¶ 51 (“[T]he law assumes that no

person intends to render property conveyed inaccessible for the

purpose for which it was [g]ranted.” (quoting Wagner v. Fairlamb,

379 P.2d 165, 169 (Colo. 1963))).

II. Extrinsic Evidence

¶ 91 Second, even if there exists a “measure of ambiguity” when

harmonizing the Original Declaration language with the Plat Map,

extrinsic evidence may be utilized to explain and give context to the

language and to determine the actual intent of the parties. See

Precious Offerings Min. Exch., Inc. v. McLain, 194 P.3d 455, 458

(Colo. App. 2008) (“[A] court may find an express easement, where a

writing which purportedly conveys an easement is ambiguous,

based on extrinsic evidence to determine ‘the actual intention of the

parties’ and ‘to explain and give context to the language.’” (quoting

Lazy Dog, 965 P.2d at 1236-37) (Extrinsic evidence depicting “the

location and character of the properties burdened and benefited by

the servitude, the use made of the properties before and after

creation of the servitude, the character of the surrounding area, the

49

existence and contours of any general plan of development for the

area, and consideration paid for the servitude” is relevant to

interpreting the language of a servitude. (quoting Restatement

(Third) of Prop.: Servitudes § 4.1 cmt. d (Am. L. Inst. 2000))); see

also Stevens v. Mannix, 77 P.3d 931, 933 (Colo. App. 2003) (“If a

valid easement is granted without fixing in writing its location, the

location may be determined based on the conduct of the parties.”);

see also Gjovig v. Spino, 701 P.2d 1267, 1268 (Colo. App. 1985)

(looking to historical use of the easement where there was no

precise description of the easement’s location of ingress and egress

over the servient estate).

¶ 92 The majority contends that it was error for the district court

“to consider the historical use of the property by the Association

and unit owners and the circumstances existing at the time.”

Supra, ¶ 39. But any measure of ambiguity requires consideration

of the surrounding circumstances when the Original Declaration

was recorded and the use of the easement after its creation. In

1983, the townhome complex was built so that only Lot 104A’s unit

had a back door to access the lot’s backyard, while the other three

lots did not have back doors. See Lazy Dog, 965 P.2d at 1237 (the

50

location and character of the properties and the character of the

surrounding area are relevant to interpreting an express easement).

The easement allowed the owners of Lots 104B and 104C to access

their backyards by having access to the side yards of Lots 104A and

104D and allowed the Association to conduct maintenance of the

building and surrounding common area. See City of Lakewood, ¶

10 (“The instrument instead must identify with reasonable certainty

the easement created and the dominant and servient tenements.”).

¶ 93 And the record demonstrates that the unit owners were not

freely using each other’s backyards for general purposes. See Lazy

Dog, 965 P.2d at 1237 (the use made of the property after the

creation of the servitude is relevant to interpreting an ambiguous

express easement). Instead, the unit owners historically interpreted

and used the easement to access the side and rear yards for access

to their own backyards and for maintenance or repair of the exterior

of the townhomes and shared utilities. See Gjovig, 701 P.2d at

1268 (looking to historical use of the easement to determine its

location). Specifically, the Association used the easement to

facilitate its duties, including but not limited to, installations,

inspections, maintenance, snow plowing and stacking of excess

51

snow, painting and staining the building, and access to the rear

yards. See id.

III. Scope of Express Easement

¶ 94 I agree with Crystal and the majority, though, that the district

court’s finding of an express easement that extends the Access and

Utility Easement to the entire “surrounding” land” of the property

would allow all unit owners unlimited ingress and egress to the

entire north side of Lots 104A through 104D to access the abutting

open space. In that case, the scope and purpose of the express

easement would be contrary to the grant of fee simple for each

owners’ backyard. But this is not fatal to the finding of an express

easement.

¶ 95 Nothing in the Plat Map or Original Declaration indicates that

the express easement permits the Association or the owners to use

the side yards of Lots 104A or 104D or any portion of their rear

yards for anything other than accessing the individual unit’s

backyards or furthering the Association’s performance of its duties

requiring access to the rear of the individual lots for maintenance

and upkeep, which, contrary to the district court’s conclusion,

would not grant access to the entirety of the north lot.

52

¶ 96 In sum, when construing the Plat Map and Original

Declaration together, I would conclude that the Association and its

members have an express easement on the “common area” of the

subdivision (which extends the current Access and Utility Easement

to the sides of Lots 104A and 104D for ingress and egress to the

individual backyard lots. But the “common area” which is subject

to “common use” by all owners would be limited to ingress and

egress as necessary for an owner to access their individual lot’s

backyard or for the Association maintain any and all utilities or

perform other maintenance and upkeep that benefits the entire

development. The unit owners and Association would not have

ingress and egress to the entire north side of the Plat Map; instead,

I would limit the express easement to the scope and breadth

necessary for the Association and the unit owners to have a

nonexclusive right on, over, under, and across the common area to

access their individual lot’s backyards or for the Association to

perform maintenance, inspection, repair, installation, and upkeep

53

as needed on the building; to access the townhomes; and to reach

or facilitate complete access to the rear of the lots.

1

1

I would agree with the district court that the easements

articulated in sections 2.4 and 2.6 of the Amended Declaration are

consistent with and coextensive of the nature, scope, purpose, and

area of the express easement that existed over Lot 104A under the

Original Declaration. The provisions do not operate to expand the

easement that encumbered the property but merely clarify the

existing easement.