City of Lakewood, Colorado, a Colorado home rule municipality, Plaintiff-Appellee,
Joyce B. Armstrong and Mary E.J. Armstrong Trust, Defendants-Appellants.
County District Court No. 15CV31593 Honorable Randall C. Arp,
Hoffmann, Parker, Wilson & Carberry, P.C., M. Patrick
Wilson, Kathryn M. Sellars, Denver, Colorado, for
Timmins LLC, Jo Deziel Timmins, Edward P. Timmins, Denver,
Colorado, for Defendants-Appellants
1 Defendants, Joyce B. Armstrong and the Mary E.J. Armstrong
Trust (the Armstrongs), appeal the district court's
summary judgment for plaintiff, City of Lakewood (Lakewood),
declaring that a deed conveying an express easement over the
Armstrongs' property was a valid and enforceable easement
appurtenant. We affirm.
Facts and Procedural History
2 The undisputed facts establish that on June 18, 1984, Lois
Jones Mackey executed a deed (Mackey deed) purporting to
convey a "permanent public easement for ingress and
egress" over a portion of the southeast corner of her
property to Jefferson County. The deed was recorded in the
Jefferson County Clerk and Recorder's Office that same
day. Lakewood owned property directly east and north of
Mackey's property, but Jefferson County did not own any
adjacent property. Lakewood's adjacent property consisted
of the Bear Creek Greenbelt.
3 A month later, Jefferson County executed a deed to Lakewood
(Commissioners deed) conveying the Mackey deed easement using
the same legal description. The Commissioners deed contained
a reverter clause that required Lakewood to use the easement
exclusively for public open space, park, and recreational
purposes. This deed was recorded in October 1984 in the
Jefferson County Clerk and Recorder's records.
4 In 2011, the Armstrongs bought the property from
Mackey's successor in interest and occupied it. At some
point, the Armstrongs attempted to obstruct the
easement's use by locking a gate at one entrance to it.
In 2015, Lakewood filed an action for quiet title,
declaratory judgment, prescriptive easement, trespass,
reformation of the Commissioners deed, and preliminary and
permanent injunctive relief. The Armstrongs answered and
counterclaimed for quiet title, asserting that the easement
was invalid. Lakewood requested partial summary judgment on
its claims for declaratory judgment, quiet title, and
reformation of the Commissioners deed. The Armstrongs filed a
cross-motion for summary judgment in their favor on all of
5 Before trial, the district court granted Lakewood's
summary judgement motion for declaratory judgment, quiet
title, and reformation. The court found that the easement was a
valid express easement appurtenant over the Armstrongs'
property for use by the public and Lakewood. The court denied
the Armstrongs' motion for summary judgment and entered a
final order and decree.
Standard of Review
6 The court's summary judgment noted that "[t]he
parties agree that . . . there is no genuine issue of
material fact in dispute as to the question of whether an
express easement exists and that this issue is appropriate
for resolution on summary judgment." Because all issues
raised by the Armstrongs on appeal were decided by summary
judgment, the parties agree that a de novo review standard
applies. We agree.
7 We review an appeal of a summary judgment de novo.
Edwards v. Bank of Am., N.A., 2016 COA 121, ¶
13. Summary judgment is a drastic remedy and should be
granted only when the pleadings and the supporting documents
demonstrate that no genuine issue of material fact exists and
that the moving party is legally entitled to judgment. W.
Elk Ranch, L.L.C. v. United States, 65 P.3d 479, 481
The Commissioners Deed Is Valid Because the Easement Is
with Reasonable Certainty
8 The Armstrongs assert that the district court erred in
granting Lakewood's motion for summary judgment because
the Commissioners deed violates the statute of frauds and is
void "because it fails to legally describe the easement
itself or the dominant estate." We disagree.
9 An interest in real property, including an express
easement, must be created by act or operation of law or
contained in a deed or conveyance and subscribed by the party
creating or assigning the interest to satisfy the statute of
frauds. § 38-10-106, C.R.S. 2017; Strole v.
Guymon, 37 P.3d 529, 533 (Colo.App. 2001) (easements are
interests in real property).
10 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. 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. Hutson v. Agric. Ditch &
Reservoir Co., 723 P.2d 736, 740 (Colo. 1986). The
instrument instead must identify with reasonable certainty
the easement created and the dominant and servient tenements.
Hornsilver, 904 P.2d at 1356. No particular words
are necessary to grant an easement, and a lack of specificity
in describing an easement's location will ordinarily not
invalidate it. Stevens v. Mannix, 77 P.3d 931, 932
(Colo.App. 2003) (citing Isenberg v. Woitchek, 144
Colo. 394, 400, 356 P.2d 904, 907 (1960)).
11 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 vagueness could
result in a holding that no easement was granted."
Isenberg, 144 Colo. at 399, 356 P.2d at 907; see
Friends of the Black Forest Reg'l Park, Inc. v. Bd. of
Cty. Comm'rs, 80 P.3d 871, 879-80 (Colo.App. 2003)
(no easement was created where a conveyance was "subject
to" a right-of-way not previously existing and possibly
including land not owned by the grantor, and concluding
"[w]e cannot determine from the face of the 1921 deed
that the lumber company intended to grant the road
easement"). "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., L.P. v. TSG
Ski & Golf, LLC, 2015 COA 177, ¶ 48 (citing
Lazy Dog Ranch v. Telluray Ranch Corp., 965
P.2d 1229, 1235 (Colo. 1998)). Ascertaining the parties'
intent is "[o]ur paramount concern." Lazy
Dog Ranch, 965 P.2d at 1235.
The Easement's Description in the Commissioners Deed
12 The Commissioners deed conveyed to Lakewood a
"permanent public easement for ingress and egress
over the property describedin Exhibit
'A' attached hereto." (Emphasis added.) The
deed and attached Exhibit A provide a detailed metes and
bounds description of a 0.362 acre parcel of land lying in
the "NW 1/4 of section 34, township 4 south, range 69
west of the 6th P.M., City of Lakewood" in Jefferson
County, Colorado. Thus, the Commissioners deed contains
"a description of the land that is to be subjected ...