San Miguel County District Court No. 11CV9 Honorable Mary E. Deganhart, Judge
Clay and Dodson, P.C., Aaron R. Clay, Delta, Colorado; Haynes & Haynes, LLC, David M. Haynes, Boulder, Colorado, for Plaintiff-Appellant
Dackonish & Blake, P.C., Thomas W. Blake, Grand Junction, Colorado, for Defendants-Appellees TSG Ski & Golf, LLC and TSG Asset Holdings, LLC
Earl G. Rhodes, LLC, Earl G. Rhodes, Grand Junction, Colorado, for Defendant-Appellee Board of County Commissioners of the County of San Miguel, Colorado
¶ 1 Plaintiff-appellant, Gold Hill Development Company, L.P. (GHDC), appeals (1) the judgment dismissing its claims against defendants-appellees, TSG Ski & Golf, LLC and TSG Asset Holdings, LLC (together referred to as TSG) and the Board of County Commissioners of San Miguel County (SMC), and (2) the order denying 60(b) relief. We affirm.
¶ 2 GHDC owns several mining lode properties in the vicinity of various properties owned by TSG in the Upper Bear Creek Basin in San Miguel County, Colorado. GHDC alleged that access to its mining properties, particularly the Little Bessie, Modena, and Gertrude mining lodes, has historically been made by means of a trail known as the Gold Hill Road (the route), which traverses portions of TSG's properties before terminating on the Little Bessie. GHDC claims the right to use and maintain the route where it crosses over TSG's mining lode properties, including the May Girl; Fairview Nos. 2, 3, 4, and 5; Electric; Gold Medal; and Little Rose.
¶ 3 GHDC brought several claims against TSG: express easement; implied easement; implied easement by prior use; way of necessity; public road pursuant to R.S. 2477, Act of July 26, 1866, ch. 262, § 8, 14 Stat. 251 (1866) (codified at 43 U.S.C. § 932), repealed by Federal Land Policy Management Act, Pub. L. No. 94-579, § 706(a), 90 Stat. 2743, 2786, 2793 (1976) (specifically providing that it would not terminate any right-of-way previously permitted); and public road pursuant to sections 43-2-201(1) and 43-1-202, C.R.S. 2015. SMC was later added as a party and ultimately defended against some of GHDC's claims, asserting that the route was not a public highway. SMC also filed a counterclaim against GHDC seeking declaratory relief that the Wasatch and East Fork trails, as they cross two of GHDC's mining properties, the Gertrude and the Modena, were public highways pursuant to R.S. 2477 and a public prescriptive easement under section 43-2-201(1)(c).
¶ 4 In a bench trial, the parties presented expert testimony regarding the mining history of the Telluride area, including testimony on the access to the mining claims in Bear Creek and Upper Bear Creek, the interpretation of maps, the location of the various mining claims, and descriptions of avalanche danger in certain areas, along with other testimony. GHDC presented the testimony of a geologist, while TSG presented the testimony of a surveyor, an avalanche expert, and a local historian and map collector. SMC presented the testimony of a history professor at Fort Lewis College, in Durango, Colorado. Numerous other witnesses also testified regarding the trails and history of the area.
¶ 5 At the conclusion of GHDC's case, the trial court granted TSG's motion for directed verdict as to GHDC's express easement claim. Subsequently, the court dismissed all of GHDC's other claims against TSG. In a detailed and well-reasoned order, the trial court granted SMC's R.S. 2477 public road claim against GHDC as to the portion of the East Fork trail that crosses the Gertrude and SMC's section 43-2-201(1)(c) public prescriptive easement claim as to (1) the portion of the Wasatch/Bear Creek Trail as it crosses the Modena and (2) the portion of the East Fork trail as it crosses the Gertrude.
II. R.S. 2477 Public Road Claims
¶ 6 On appeal, GHDC contends that the trial court erred in imposing additional requirements, not supported by Colorado law, for its R.S. 2477 claim across the TSG properties.
A. Standard of Review
¶ 7 On appeal, "[w]e review a [trial] court's legal conclusions de novo and its factual findings for clear error." Williams v. Crop Prod. Servs., Inc., 2015 COA 64, ¶ 4. "The credibility of witnesses, sufficiency, probative effect, and weight of the evidence, as well as any inferences or conclusions to be drawn therefrom, are all within the province of the trial court." Telluride Real Estate Co. v. Penthouse Affiliates, LLC, 996 P.2d 151, 155 (Colo.App. 1999). It is also the trial court's role to resolve factual conflicts in the evidence. See In re Parental Responsibilities Concerning D.T., 2012 COA 142, ¶ 17.
¶ 8 R.S. 2477 serves as an "express dedication of a right of way for roads over [public domain] lands, acceptance of which by the public results from 'use by those for whom it was necessary or convenient.'" Brown v. Jolley, 153 Colo. 530, 537, 387 P.2d 278, 281 (1963). R.S. 2477 provided: "The right of way for the construction of highways over public lands, not reserved for public uses, is granted." § 8, 14 Stat. at 253. "R.S. 2477 was 'essentially the only authority' by which the public could establish roads across federal lands." Kane Cty., Utah v. United States, 772 F.3d 1205, 1222 (10th Cir. 2014) (quoting S. Utah Wilderness All. v. Bureau of Land Mgmt., 425 F.3d 735, 786 (10th Cir. 2005)).
¶ 9 "Us[e] is the requisite element, and it may be by any who have occasion to travel over public lands, and if the use be by only one, still it suffices." Brown, 153 Colo. at 537, 387 P.2d at 281 (quoting Leach v. Manhart, 102 Colo. 129, 133, 77 P.2d 652, 653 (1938)). It is the claimant's burden to establish public use of the road before the government land is withdrawn from the public domain. Korf v. Itten, 64 Colo. 3, 4, 169 P. 148, 149 (1917). Property is removed from the public domain at least by the date that a location certificate is recorded. See Camp Bird Colo., Inc. v. Bd. of Cty. Comm'rs, 215 P.3d 1277, 1289 (Colo.App. 2009).
C. Across the TSG Properties
¶ 10 GHDC first argues that the court erred in requiring it to prove that the route was a "through route" and that the alleged trail segment "connect[ed] to other roads." The trial court concluded that "[GHDC] has failed to show that the public was using the alleged route to gain access to [GHDC]'s mining claims, or any other claims, prior to [the 1884 May Girl removal date]." It quoted from Sprague v. Stead, 56 Colo. 538, 543, 139 P. 544, 546 (1914), for the proposition that the route must be "confined to a reasonably certain and definite line." The Sprague court further elaborated that "[a] highway, however established, should have reasonable certainty of limits and direction." Id.
¶ 11 GHDC argues that the trial court should have found the existence of an R.S. 2477 route based on: (1) the testimony of the geologist, which the trial court noted was unsubstantiated; (2) the fact that some mining claims had been staked along Gold Hill Ridge prior to 1884; and (3) the presence of a trail segment along the ridge on the 1898 United States Geological Survey (USGS) map (surveyed in 1894) and on the May Girl survey (conducted in 1887). However, simply because some people were in the area of the ridge does not prove the existence of a "reasonably certain and definite" route across TSG's properties, regardless of whether it was a connecting "through route." Moreover, the court noted that the surveyor testified:
the trail segment as shown on the May Girl mineral survey plat did not match up with or appear on 18 other mineral surveys he examined that lie south of the May Girl. [And although] all mineral surveyors at the time did not always place all trails or landmarks on their survey plats . . . [the surveyor] believed it was significant that none of the 18 mineral surveys he reviewed showed any such trail.
Therefore, the record supports the findings of the trial court, and we perceive no error.
¶ 12 GHDC next argues that the court erred in evaluating its claim under the 1884 May Girl removal date, and that instead, it should have separately evaluated each mining property over which the alleged route traversed. TSG, in response, argues that the court's use of the May Girl removal date was proper because it was the earliest of the TSG properties along the route to be removed from the public domain.
¶ 13 Neither party provides any support for its assertion. However, even assuming that the court erred, we conclude that any such error was harmless. See C.R.C.P. 61; Tarco, Inc. v. Conifer Metro. Dist., 2013 COA 60, ¶ 18. GHDC noted that the other mining lode properties over which the route traversed had later removal dates ranging from 1890 to 1904. Even if the court was required to analyze each such property separately, GHDC would nevertheless still have to establish the existence of the route over those properties before their individual removal dates.
¶ 14 The trial court noted, however, that GHDC had failed to prove the existence of the trail by a preponderance of the evidence before the relevant time period. The court also observed that there was "significant evidence" that the route was not constructed until 1956, and that prior to that date, access was via the Bear Creek and Wasatch trails. It stated:
The earliest that the existence of any real route is shown on Gold Hill is the 1898 [USGS] map which utilizes data from 1894 . . . . [T]here are no references to a trail on Gold Hill in any newspaper articles, journals or other writings. There is no evidence of any acceptance or acknowledgement of such route by the county, nor is it denoted on any maps prior to 1898 . . . . Other than the opinion testimony of [the geologist] [that the route was being used as early as 1877] and the existence of a trail segment shown on the May Girl mineral survey, there is no evidence that a trail existed on Gold Hill or that the public used such trail prior to 1884.
GHDC insists, however, that the 1898 USGS map establishes the existence of the trail and should be credited. But, it is the trial court's role to evaluate the weight and credibility of evidence, and because we conclude that the court's findings are supported by the record, we perceive no error. See D.T., ¶ 17; Telluride Real Estate Co., 996 P.2d at 155.
D. Across the Gertrude
¶ 15 GHDC argues that the trial court's findings and analysis with respect to GHDC's and SMC's R.S. 2477 claims are "inconsistent" because the court at times credited the absence of certain trails to deny public use, while at other times it failed to acknowledge the absence of other trails on surveys and maps presented at trial. Specifically, GHDC complains that the trial court failed to credit the absence of certain trail segments on several mineral surveys when it concluded that SMC had proven an R.S. 2477 road across GHDC's Gertrude mining property. GHDC asserts that this was inconsistent with the court's ruling that GHDC's R.S. 2477 claim failed because the route did not appear on the mineral surveys over which it traversed.
¶ 16 The court found, however, based on the testimony of the geologist and the surveyor, that "[m]ineral [s]urveys, depending upon the particular surveyor, may show trails or other characteristics[, ] but [they] do not always show such features." The court's findings as to public use were also not based solely on maps and mineral surveys, but were based, as well, on extensive testimony regarding the use and nonuse of the various routes. Because there is support in the record for the court's findings, we perceive no error. See D.T., ¶ 17; Telluride Real Estate Co., 996 P.2d at 155.
¶ 17 GHDC also complains that the court's citation to the 1879 Ouray County declaration as evidence of the existence of public use of the East Fork Trail is inconsistent because the court elsewhere stated, in the words of GHDC, that "the resolution must be disregarded as to the Wasatch Trail because it was passed while the subject property was privately owned." GHDC's assertion of error, however, is based on an apparent misunderstanding of the trial court's order. As to SMC's public prescriptive easement claim, the court stated that the declaration must be disregarded as an overt act under section 43-2-201(1)(c) because it occurred prior to the subject properties becoming private. Because the question in an R.S. 2477 claim is whether or not there was evidence of public use prior to removal of the property from the public domain, and not after the property is privately owned, the court's reasoning is not inconsistent.
¶ 18 Finally, GHDC argues that SMC failed to demonstrate public use of the route over the Gertrude from 1890 to 1899. GHDC, however, does not accurately cite to its preservation of this argument below, and our review of the record does not indicate that such an argument was raised. "Arguments not raised before the trial court may not be raised for the first time on appeal." Am. Family Mut. Ins. Co. v. Allen, 102 P.3d 333, 340 n.10 (Colo. 2004). Therefore, we decline to consider it. See also O'Quinn v. Baca, 250 P.3d 629, 631 (Colo.App. 2010) ...