Beck v. Banker

23CA1664 Beck v Banker 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1664
Larimer County District Court Nos. 19CV30718 & 21CV30918
Honorable Stephen J. Jouard, Judge

Darrell L. Beck, III,

Plaintiff-Appellee and Cross-Appellant,

v.

John G. Banker and Kim Lankford Banker,

Defendants-Appellants and Cross-Appellees.

JUDGMENT AND ORDER AFFIRMED

Division VII
Opinion by JUDGE TOW
Pawar and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 21, 2024

Jung & Associates, P.C., Ronald D. Jung, Boulder, Colorado; Hutchinson Black
and Cook, LLC, Meghan C. Hungate, Matthew A. Simonsen, Boulder, Colorado,
for Plaintiff-Appellee and Cross-Appellant

Snell & Wilmer L.L.P., James D. Kilroy, Nathan K. Davis, Carissa L. Pryor,
Denver, Colorado, for Defendants-Appellants and Cross-Appellees
¶1 Defendants, John G. Banker and Kim Lankford Banker, whose

property is burdened by an easement giving plaintiff, Darrel L.

Beck III, the right to use the road that crosses their property,

appeal the district court’s judgment prohibiting them from building

an archway with a gate (the gate) on the road. They also appeal the

district court’s postjudgment order prohibiting them from building

an archway without a gate (the archway). Beck cross-appeals the

postjudgment order, in which the district court denied his request

for attorney fees. We affirm the judgment on narrower grounds and

the order on different grounds than those relied on by the district

court.

I. Background

¶2 The following facts are largely undisputed.

¶3 Pinwheel Ranch Road (the road) provides access to the

Bankers’ and Beck’s properties. The Bankers own land that is

traversed by a portion of the road, and Beck has an easement to

use the road as a means of ingress and egress to and from his

property.

¶4 For several years, the Bankers and Beck have been litigating

disputes over the road. In this case, citing the need for increased

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security, the Bankers wished to build a lockable gate on the road,

the code for which would be given to Beck and the other neighbors

along the road. The Bankers filed a complaint asking the district

court for a declaratory judgment that the Bankers had the authority

to construct the gate.1

¶5 Beck filed counterclaims asking the court to enforce a

pre-existing permanent injunction preventing the Bankers from

blocking or interfering with Beck’s use of the road and alleging the

Bankers were in contempt of court for violating orders arising out of

prior easement-related litigation.

¶6 In their trial brief, the Bankers expounded on their request for

declaratory judgment, explaining that the archway would be two

vertical support pillars placed approximately two feet outside of the

easement on either side of the road. The pillars would be connected

by a thirteen-and-a-half-foot high horizontal crosspiece and the

gate would be installed between the support pillars. This structure

1 The Bankers filed their complaint for declaratory judgment in

Larimer County Case No. 21CV30918, but that case was eventually
consolidated with Larimer County Case No. 19CV30718, a pre-
existing case in which Beck had sued the Bankers and several
defendants over related disputes involving his access to his
property.

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would be labeled as the entrance to the Bankers’ property and

identify the road as private.

¶7 Beck opposed the gate under two legal theories. He argued

that the proposed structure would unreasonably interfere with his

easement to use the road. And he sought to enforce a use-

restriction covenant (the covenant), which prohibits building

structures on the portion of the road where the Bankers proposed

to build one of the support pillars for the archway.

¶8 After a bench trial, the district court issued findings of fact

and conclusions of law. The court agreed with Beck on both

theories, concluding that the gate would unreasonably interfere

with Beck’s easement and Beck could enforce the covenant

prohibiting structures on the property abutting the road. The

district court ruled against Beck on his counterclaim for contempt.

¶9 Both parties submitted post-trial motions. Beck sought an

award of costs and attorney fees. And the Bankers filed a motion

under C.R.C.P. 59, asking the district court to separately analyze

whether the archway was allowed and to amend its judgment to

allow the Bankers to build the archway. The district court denied

both motions, determining that Beck was not the prevailing party

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and the Bankers had not demonstrated any “factual or legal error

upon which to amend the existing judgment.”

II. The Easement

¶ 10 The Bankers argue that the district court erred in finding the

proposed gate and archway would unreasonably interfere with

Beck’s easement to use the road. We discern no error.

A. Standard of Review

¶ 11 Whether an action unreasonably interferes with a party’s

easement is a question of fact. Lazy Dog Ranch v. Telluray Ranch

Corp., 923 P.2d 313, 317 (Colo. App. 1996) (Lazy Dog I).

Accordingly, we review for clear error, and “we shall not disturb the

findings of the trial court if supported by the evidence.” Id. “We

may not reweigh evidence or substitute our judgment for the trial

court’s.” Franklin Drilling & Blasting Inc. v. Lawrence Constr. Co.,

2018 COA 59, ¶ 32 (quoting Target Corp. v. Prestige Maint. USA,

Ltd., 2013 COA 12, ¶ 24).

B. Analysis

¶ 12 “[T]he owner of [a] servient estate may make any use of the

burdened property that does not unreasonably interfere with the

enjoyment of the easement by its owner for its intended purpose.”

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Lazy Dog Ranch v. Telluray Ranch Corp., 965 P.2d 1229, 1238 (Colo.

1998) (Lazy Dog II). “[T]he interests of both parties must be

balanced in order to achieve due and reasonable enjoyment of both

the easement and the servient estate.” Id.

1. The Gate Would Unreasonably Interfere
with Beck’s Use of the Easement

¶ 13 When considering whether a gate across a road would

unreasonably interfere with the dominant estate’s easement, courts

consider four factors: “(1) the purpose for which the grant was

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

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

(4) the manner in which the easement was used.” Lazy Dog I, 923

P.2d at 317. The district court appropriately analyzed each factor

and its findings as to each were supported by the record.

¶ 14 First, the language of the easement demonstrates that the

intent of the parties was for the road to provide access to the

properties along it. The Bankers do not dispute this finding.

¶ 15 Second, the district court found there was insufficient

evidence to determine whether the parties who created the

easement had any intention to permit or prohibit installation of a

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gate along the road. While the Bankers argue that the road

previously had gates, those gates were eventually taken down.

Moreover, there was evidence that some of the gates had historically

caused discord among the neighbors.

¶ 16 Third, the road is situated alongside several properties, most

of which, including the Bankers’ property, have their own locked

gates at the entrance to their property. While some of the property

owners testified to an increase in trespassers using the road, the

Bankers have never called law enforcement about alleged

trespassers. Furthermore, as noted, there were numerous disputes

between neighbors about gates previously located on the road.

¶ 17 Beck testified that the gate would delay and disrupt his and

his guests’ ability to use the road. The district court was

unpersuaded by the Bankers’ argument that their desire to build

the gate was motivated by security concerns. Instead, the district

court found that the proposed gate was simply another attempt to

control Beck’s use of and access to the road.

¶ 18 Fourth, the road has been used to access the properties that

run along it. The Bankers do not dispute this finding.

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¶ 19 The district court’s finding that the gate would unreasonably

interfere with Beck’s easement because it would inhibit his use of

the road has record support. The Bankers’ arguments to the

contrary essentially ask us to reweigh the evidence, which we

cannot do. Franklin Drilling, ¶ 32. We thus discern no error in the

district court’s determination that the proposed gate would

unreasonably interfere with Beck’s use of the easement.

2. The Archway Would Unreasonably
Interfere with Beck’s Use of the Easement

¶ 20 In their post-trial motion, the Bankers asserted that the

district court failed to consider its alternative request to build just

the archway without the gate. The district court denied the motion,

saying, “the Court fails to find any basis to reconsider its findings,

conclusions, or judgment as to some sort of a gate, entry structure,

or sign.” Reviewing the denial of the motion for an abuse of

discretion, see Top Rail Ranch Ests., LLC v. Walker, 2014 COA 9,

¶ 74, we find none.

¶ 21 Beck testified that the proposed height of the archway would

be too low for his tree-moving equipment. The district court agreed

and found the height of the structure would unreasonably interfere

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with Beck’s use of his property. The Bankers contend that they

would accommodate any height restriction necessary to avoid

impeding Beck’s access. However, the district court found that the

Bankers’ proposed plan for the archway would not accommodate

Beck’s equipment.

¶ 22 The Bankers further contend that the structure would be built

to accommodate the maximum height for legal vehicles and that

Beck had no right to use a vehicle above the lawful height. The

record indicates otherwise. Beck testified that this equipment is

classified as an agricultural vehicle and therefore exempt from

Commercial Vehicle Regulations. The district court agreed.

¶ 23 Finally, the Bankers offered to present alternative designs to

the structure. But the district court declared, and we agree, that it

is not tasked “to select an array or aid in a development of a design

that may, or may not[,] . . . avoid conflicts.”

¶ 24 In the judgment, the district court considered Beck’s concerns

regarding the height of the proposed structure and whether it would

impede Beck from using the equipment he uses. Thus, the

Bankers’ postjudgment assertion that the district court did not

consider the archway alone is belied by the record. Moreover, the

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record supports the district court’s findings regarding the proposed

archway’s height interfering with the passage of Beck’s equipment.

Consequently, the district court did not abuse its discretion by

declining to amend its findings or conclusions.

III. The Covenant

¶ 25 The Bankers also argue that the district court erred by

permitting Beck to enforce the covenant. Given our resolution of

the easement issue, we would normally not need to address this

alternate ground for prohibiting the Bankers from building the gate

and archway. However, because Beck’s claim for attorney fees rests

on whether he has standing to enforce the covenant, we must

consider this question.

¶ 26 The Bankers contend that Beck does not have a right to

enforce the covenant because he was neither a party to it nor a

beneficiary of it. We agree.

A. Additional Background

¶ 27 The Bankers sought to build one of the support pillars for the

archway on land that is burdened by a covenant. The covenant at

issue was created by Craig B. Van Cleve and Leslie Larson, David

Brockway, Richard A. Graves, and Greg Stanley Jacobson and

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Adele Kay Jacobson (collectively, the predecessors). The

predecessors swapped land to resolve a boundary dispute. In a

quitclaim deed used to convey the land swap (the land swap deed),

Van Cleve and Larson conveyed land to the Jacobsons, Graves, and

Brockway. The land swap deed also created a use-restriction

covenant that prohibited building non-fence structures on the

property conveyed in that land swap:

No building or other structure, except fences,
may be constructed upon the property being
conveyed hereby. This restriction shall be a
covenant for the benefit of the owner of the
property legally described as . . . (“the Adjacent
Property”). This restriction shall be a covenant
running with the land and shall be binding
upon and inure to the benefit of the parties
hereto and their respective heirs, personal
representatives, and assigns. Enforcement of
this covenant shall be by appropriate
proceeding at law or in equity against those
persons or entities violating or attempting to
violate this covenant . . . . Such judicial
proceeding may be prosecuted by the then
record owner or owners of the Adjacent
Property.2

2 The land swap deed was subsequently replaced by another deed

correcting the conveyed property’s legal description, but the quoted
language in the covenant remained the same.

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¶ 28 At the time of the covenant’s creation and at the time of trial,

Van Cleve and Larson owned the Adjacent Property. At some point,

Brockway sold some of his property to Beck, some to the Bankers,

and the remainder to Christopher Nowak. Beck’s property does not

include the Adjacent Property or the property that was conveyed by

the land swap deed. In particular, the land on which the Bankers

proposed building one of the archway’s pillars and that is burdened

by the covenant Beck sought to enforce — is now owned by the

Bankers.

B. Standard of Review

¶ 29 We review de novo the interpretation of a restrictive covenant.

K9Shrink, LLC v. Ridgewood Meadows Water & Homeowners Ass’n,

278 P.3d 372, 377 (Colo. App. 2011). We interpret a covenant

according to the language’s plain and ordinary meaning, and “[i]f

the covenant is clear on its face, [we] will enforce it as written.” Id.

We construe a covenant as a whole, “seeking to harmonize and to

give effect to all provisions so that none will be rendered

meaningless.” Pulte Home Corp. v. Countryside Cmty. Ass’n, 2016

CO 64, ¶ 23 (quoting Copper Mountain, Inc. v. Indus. Sys., Inc., 208

P.3d 692, 697 (Colo. 2009)).

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C. Analysis

¶ 30 Beck is not entitled to enforce the covenant. The plain

language of the covenant states that it is “for the benefit of the

owner of the property legally described as . . . (‘the Adjacent

Property’).” The covenant also states that it is enforceable by the

“owners of the Adjacent Property.” Because Beck does not own the

property, he is not entitled to enforce the covenant. Rooney v.

Peoples Bank of Arapahoe Cnty., 513 P.2d 1077, 1079 (Colo. App.

1973) (holding plaintiff could not enforce neighboring subdivision’s

covenant).

¶ 31 Beck counters by pointing to the covenant’s language saying,

“[t]his restriction shall be a covenant running with the land and

shall be binding upon and inure to the benefit of the parties hereto

and their . . . assigns.” He argues that because he bought his

property from Brockway, who was a party to the land swap deed, he

is an assignee of Brockway and thus a beneficiary of the covenant

with enforcement rights.

¶ 32 Beck’s reliance on this language is misplaced. Read in the

context of the entire use restriction provision, the language means

that the covenant is binding on the parties receiving the swapped

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land (and their assigns) and inures to the benefit of the parties

retaining ownership of the Adjacent Property (and their assigns).

Beck’s (and the district court’s) contrary interpretation would

render meaningless the more specific language that the covenant is

for the benefit of the owners of the Adjacent Property, who are the

only parties authorized to prosecute any judicial proceeding to

enforce the covenant. We will not interpret the covenant in that

way. See Pulte Home Corp., ¶ 23.

¶ 33 Beck further argues that the sentences mentioning the

Adjacent Property are illustrative and not exclusive. This argument

fails for two reasons. First, it does not explain why Beck should be

able to enforce a covenant on land he does not own. Second, the

plain language of the covenant suggests that the references to the

Adjacent Property are exclusive. The first reference to the Adjacent

Property says “[t]his restriction shall be a covenant for the benefit of

the owner of the property legally described as . . . (the ‘Adjacent

Property’)” — which in no way suggests that any other property

owner is a beneficiary of the covenant. The lack of the word “only”

does not, as Beck suggests, mean that we can read in other parties

who are not explicitly mentioned as being benefitted by or

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empowered to enforce the covenant. Rather, given that two of the

eight sentences in the covenant exclusively mention the Adjacent

Property, we consider the lack of language like “such as,” “and

others,” or “etc.,” to be indicative of an intent to benefit and give

enforcement rights only to the owners of the Adjacent Property.

¶ 34 As we interpret the covenant, Beck is not an assignee of

Brockway for purposes of the covenant. As noted, the land Beck

bought from Brockway was not the parcel conveyed to Brockway in

the land swap. Similarly, Beck does not own and was not assigned

any ownership interests in the Adjacent Property. In other words,

while the covenant may run with the land that it burdens, it does

not run to Beck’s wholly unrelated land.

¶ 35 Said yet another way, though Brockway was an original party

to the land swap, he was never an “owner[] of the Adjacent

Property,” and thus did not have the right to enforce the covenant.

Therefore, Brockway could not have assigned any such rights to

Beck.

¶ 36 Beck is not able to invoke the covenant to prevent the

Bankers’ construction of the archway and gate. The district court,

therefore, erred by ruling in Beck’s favor on this issue.

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¶ 37 As noted, this conclusion does not result in reversal of the

judgment because the district court’s other basis for barring the

construction — unreasonable interference — was not erroneous.

However, because we conclude that Beck was not entitled to enforce

the covenant, we reject his claim that he is entitled to attorney fees

under the covenant’s fee-shifting provision. We therefore affirm the

district court’s postjudgment order denying that request, albeit on

different grounds. See Deutsche Bank Tr. Co. Ams. v. Samora, 2013

COA 81, ¶ 38 (“An appellate court may affirm the trial court’s ruling

based on any grounds that are supported by the record.”).

IV. Disposition

¶ 38 The judgment and order are affirmed.

JUDGE PAWAR and JUDGE SCHUTZ concur.

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