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Robinson v. The Oil Shale Corp.

United States District Court, D. Colorado

January 23, 2018



          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on the following motion: Defendant TOSCO's motion to dismiss (ECF # 61), [1] Plaintiff's response (ECF# 67) and TOSCO's reply (ECF #73). The motion has been referred to this Magistrate Judge for recommendation (ECF #62).[2] The Court has reviewed the pending motion, response, reply and all attachments. The Court has also considered the entire case file, the applicable law, and is sufficiently advised in the premises. Oral argument has not been requested and the Court finds that it is not necessary in this circumstance. This Magistrate Judge recommends that the motion be GRANTED in part and DENIED in substantial part.

         Plaintiff filed suit against two Defendants, The Oil Shale Corporation (TOSCO) and XTO Energy, Inc. (XTO) (XTO's motion to dismiss (ECF #71) was addressed separately by way of a Recommendation filed at ECF #88). Plaintiff owns real property in Rio Blanco County, Colorado (ECF #48, p. 1, para. 1). Plaintiff's family acquired the property in the early 1900s (ECF #48, p. 2, para. 7). Plaintiff describes the parcel of real estate in question as being in sections 2, 3, 4, 9, 10, 11, 15, and 16 of township 4 South, range 95 West of the 6th P.M., Rio Blanco County, Colorado and then attaches to the amended complaint a map at exhibit A (adverse possession claim (APC)) (ECF #48, p. 2, para. 6 and exhibit A) (map at ECF #48-1). Plaintiff's property is adjacent to the APC. (ECF #48, p. 2, para. 7). In 1972, Plaintiff acquired a grazing lease “for the Property [APC] or a portion thereof, among other grazing rights, from BLM.” (ECF #48, p. 2, para. 10). In 1986, TOSCO purchased a portion of the APC from the BLM. (ECF #48, p. 2, para. 11). In 1987, BLM informed Plaintiff that the BLM lease was no longer available and that a future lease would have to be from TOSCO (ECF #48, p. 3, para. 12). Plaintiff did not get a new lease from TOSCO and TOSCO gave no permission to be on the property (ECF #48, p. 3, paras. 13-14). Since 1986, Plaintiff has acted as a landowner of the APC by: constructing and maintaining roads, fences and gates; installing or maintaining windmills, springs, wells, water troughs and catch ponds; spraying weeds grazing livestock; and excluding others including hunters and hikers (ECF #48, p. 3, paras. 15, 16, 18 & 19). Plaintiff claims to “have excluded others for over 100 years” and claims to have adversely possessed the APC for more than 18 years (ECF #48, p. 3, paras. 22-23).

         Plaintiff turned out 97 cows and 97 calves for grazing on the APC in Schutte Gulch on 5/15/2017 (ECF #48, p. 4, para. 24). Some of the young heifers that were too small for mating with the large bulls were placed in a pen (ECF #48, p. 4, para. 25). On 6/1/2017, cattle were herded from Schutte Gulch to another APC location in Gordon Gulch (ECF #48, p. 4, para. 26). On 6/2/2017 Plaintiff determined that employees or agents of TOSCO interfered with gates maintained by Plaintiff, herded the cattle away from the pasture, and cut off the cattle from feed or water (ECF #48, pp. 4-5, para. 27). Plaintiff turned out her cattle on 6/3/2017 and then found that TOSCO was building a fence across the Schutte Gulch road, barring access and impeding the cattle from feed and water (ECF #48, p. 5, paras. 29-30). On 6/5/2017 TOSCO tried to chase the cattle through the fence they were constructing, forced the cows, separated the calves from the cows, panicked the cows, and caused the mother's milk to dry up (ECF #48, p. 5, paras. 30-34). Additionally, the heifers were released from their pen allowing them to mix with bulls too large for mating (ECF #48, p. 5, para. 35). The cattle lost weight and 13 were not found (ECF #48, p. 5, paras. 38-39). TOSCO had no permission to take such action regarding Plaintiff's cattle (ECF #48, p. 5, para. 41). TOSCO is on the property without permission, has not removed the fence, and constructed and/or used a pipeline across the property (ECF #48, p. 8, paras. 55-56).

         Plaintiff filed eight claims for relief: (1) quiet title through adverse possession; (2) prescriptive easement; (3) trespass; (4) intentional wrongful and malicious driving of cattle; (5) negligence; (6) trespass to chattel; (7) tortious interference with prospective business advantage; and (8) unjust enrichment (ECF #48, pp. 6-12).

         Defendant moves to dismiss the matter on the following basis:

         1. Failure to state a plausible claim for relief as to adverse possession and prescriptive easement:

a. Failure to show that the possession was exclusive;
b. Failure to allege possession by showing that she acted as an ordinary land owner;
c. Failure to show that the possession was adverse, particularly as the use began as permissive, there is a failure to show that an explicit disclaimer occurred transforming the use from permissive to adverse;

         2. Failure to plausibly state a claim for adverse possession thus failing to state a claim for trespass as TOSCO cannot trespass on its own property;

         3. Failure to state a claim for intentional driving of cattle as it is not an independent cause of action under Colorado law;

         4. Failure to state a claim for negligence on the basis that there was no trespass and no duty of care owed by TOSCO;

         5. Failure to state a claim for trespass to chattel as the land is TOSCO's, there was no trespass, thus there can be no trespass to chattel;

         6. Failure to state a claim for tortious interference as Plaintiff has failed to show the existence of a contract or the likelihood of a prospective contract;

         7. Failure to state a claim for unjust enrichment as it has not been shown how TOSCO will benefit from the items/services Plaintiff claims were provided (catch ponds, windmills, weed spraying, etc.), Plaintiff has not shown that TOSCO asked Plaintiff to pay for or provide the ...

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