DISTRICT COURT, PARK COUNTY, COLORADO
300 Fourth Street
Fairplay, CO80440
Plaintiffs: ELK FALLS PROPERTY OWNERS ASSOCIATION,a Colorado nonprofit corporation, KATHRYN WELLS, PAUL VASTOLA and ROBERT W. PHELPS
v.
Defendants: VERA B. DUNWODY and DRAYTON D. DUNWODY
Frederick B. Skillern, #7983
Nathan G. Osborn, #38951
MONTGOMERY LITTLE SORAN & MURRAY, P.C.
5445 DTC Parkway, Suite 800
Greenwood Village, Colorado80111
Phone Number: (303) 773-8100
Fax Number: (303) 220-0412
E-mail: / ______
Case Number:
Div:
PLAINTIFFS’MOTION FOR Temporary restraining order and PRELIMINARY INJUNCTION

Plaintiffs Elk Fall Property Owners’ Association (“The Association”), Kathryn Wells, Paul Vastola and Robert W. Phelps, by their attorneys Montgomery Little & Soran, P.C., submit the following Motion for Temporary Restraining Order and Preliminary Injunction, pursuant to C.R.C.P. 65, and state:

Certificate: Notice has been given to Defendants through their attorney, Victor Boog, Esq. Reg. No. 2561, Phone Number: (303) 986-5769, by email and through LexisNexis.

Factual Background

Plaintiffs bring this action to enjoin Defendants from blocking and obstructing public roads and private roads over which Plaintiffs have an easement by virtue of (1) grants made in the subdivision plats for Elk Falls subdivision, Blocks 1 and 3, (2) prescriptive use arising from more than forty years of continuous, uninterrupted use by the Plaintiffs, their predecessors in title, and the members of the Association, which are collectively the owners of all subdivision lots in Elk Falls Blocks 1, 2 and 3; and (3) by estoppel.

The essential facts of the case are set out in the Complaint. By her affidavit, attached, Plaintiff Kathryn Wellsattests to the truth of theallegations in the Complaint and the following statements of fact.

  1. The Association is an association made up of the residents of the ElkFalls subdivision. Plaintiffs Kathryn Wells, Paul Vastola, and Robert W. Phelps each own homes within the ElkFalls subdivision. Defendants Vera and Drayton Dunwodyreside at 11883 South Elk Creek, Pine, Colorado80470. Defendants’ address includes approximately 200 acres of adjacent land on which they run their business – The Lower Lake Ranch. (Hereinafter the aforementioned property in its entirety will be referred to as the “Dunwody Property”). The Dunwody Propertyis adjacent to the ElkFalls subdivision.
  2. Defendants obtained the Dunwody Property on January 21, 2008 via a warranty deed from the Elk Falls Ranch Development Company. (See: Exhibit 6) Since this purchase, Defendants have maintained that the roads located on the Dunwody Property in Park County (i.e. Elk Creek Road, CR 1184, Juniper Road, and Jenson Rd on Exhibit 7) are private roads and that theElk Falls subdivision residents cannot legally use them. (Hereinafter the “Disputed Roads”)(See: Exhibit 7). Defendants have taken numerous steps to assert their claim that the Disputed Roads are private. Specifically, inter alia, they have taken down the ElkFalls subdivision road sings and put up “Enter at your own risk” signs.
  3. The ElkFalls subdivision residents have, continuously and without interruption, used the Disputed Roads as their main avenue of ingress and egress to the ElkFalls subdivision since 1959. The Association has exercised sole control of the maintenance of the Disputed Roads since 1965. Prior to 1965, the ElkFallssubdivision residents and the Elk Falls Ranch residents exercised sole control of the maintenance of the Disputed Roads. The ElkFalls subdivision residents also use the adjacent land of the Disputed Road to house mail boxes and JeffersonCounty uses the Disputed Roads on their regular bus route to pick up and drop off school children from the ElkFalls subdivision.
  4. On or about February 23, 2010, Defendants blocked access to the roads in question by placing a saw horse in the middle of the Disputed Roads with a sign on it that said “Road Closed, Call 303-838-6622.” In addition, the Defendants placed a pole barrier across the Disputed Roads that had a sign on it which read: “Private Road Closed.” Further up from these obstructions, blocking access from South Elk Creek Road to Jenson Road and Juniper Road, theDefendants placed multiple large rocks on the Disputed Road, preventing access. (See: Exhibit 8 and Exhibit 9).
  5. Each of the aforementioned obstructions made it impossible for the ElkFalls subdivision residents to use the Disputed Roads to access their subdivision. As of today’s date, 17 parcels within the ElkFalls subdivision have no other means of ingress and egress to the ElkFalls subdivision but for the Disputed Roads. Without access to the Disputed Roads, the remaining ElkFalls subdivision residents face a hardship to get to and from their homes. (See: Exhibit 1).
  6. As a result of Defendants’ placement of obstructions on the Disputed Roads, Plaintiffs have suffered irreparable harm. Namely, Plaintiffs no longer have reasonable and safe access to their private residences. Additionally, because they can no longer use the Disputed Roads, Plaintiffs must daily confront risk by traveling on the alternate road during inclement weather. All of this is unnecessary, because Plaintiffs have a right to the unobstructed use of the Disputed Roads as a matter of law. The damage caused by Defendants’ interference with Plaintiffs’ use of the Disputed Roads cannot be adequately measured or remedied by law. Thus, Plaintiffs’ are requested that the court grant their Motion for Preliminary Injunction.

Law

“A preliminary injunction is designed to preserve the status quo or to protect a party’s rights pending a final determination of a cause.” Cody Park Property Owners’ Association, Inc., v. Harder, __ P.3d. __, 2009 Colo. App. LEXIS 1894 (November 25, 2009) (preliminary injunction requiring removal of obstructions blocking subdivision road)[1], citing: Keller Corp. v. Kelley, 187 P.3d 1133, 1137 (Colo. App. 2008). To grant a preliminary injunction, a trial court must find the moving party has demonstrated (1) it has a reasonable probability of success on the merits; (2) a danger of real, immediate, and irreparable injury exists which may be prevented by injunctive relief; (3) there is no plain, speedy, and adequate remedy at law; (4) there is no disservice to the public interests; (5) the balance of equities favors the injunction; and (6) the injunction preserves the status quo pending a trial on the merits.” Cody Park, supra, citing: Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo. 1982) and C.R.C.P. 65(a).

Plaintiffs can successfully demonstrate that all six factors are present in the instant case so as to justify this court grantingPlaintiffs’’ Motion for a Preliminary Injunction.

Argument

  1. Plaintiffs have a reasonable probability of success on the merits
  1. There is a high degree of probability that Plaintiffs will succeed on the merits. In the instant case, when Berg (Blocks 1 and 2) and the Elk Falls Development Company (Block 3) created the Elk Falls subdivision, each of the subdivision plats dedicated thesubdivision roads to public use, and the dedication was accepted by the public. The first road in question here is South Elk Creek Road, which was dedicated to public use in the plats for Block 1, 2, and 3. The other Disputed Roads, which consist of those portions of Jensen Road and Juniper Road which lie west of Block 1 in Park County, are either public roads or are roads for which the Plaintiffs have an easement for ingress and egress by express grant in the plat, by prescriptive use for more than forty years, and by estoppel.
  2. The intent of Berg and the Elk Falls Development Company was to ensure that the Disputed Roads were public roads. As the Block 1 and Block 2 dedications state in relevant part: “And the owner does by these presents grant and dedicate to Jefferson County, Colorado in fee simple, for the use of the public, all such roads.” (See: Exhibit 2(a) and Exhibit 3(a)). And as the Block 3 Dedication states: “And does hereby dedicate and convey, in fee simple, for public use, the shown and described public roads to ParkCounty.” (See: Exhibit 5(a)). Because the Disputed Roads were dedicated as public roads - Defendants cannot obstruct Plaintiffs’ use of them.
  3. In the alternative, Plaintiffs have established an easement for ingress and egress over the Disputed Roads by express grant in the Block 1 plat or an implied easement by reference to a plat with regards to the Disputed Roads. Berg and the Elk Falls Development Company conveyed lots in their subdivision by reference to a plat. Each of these plats listed numerous roads and common areas. (See: Exhibit 2, Exhibit 3, and Exhibit 5). Case law clearly mandates that: “When a developer conveys lots in a subdivision by reference to a plat, each grantee receives an implied easement over streets and other common areas delineated on the plat.” Jon W. Bruce and James W. Ely, Jr., The Law of Easements and Licenses in Land, Creation of Easement by Implication, § 4:31 Easements implied from reference to a plat (2009); See also: Roger A. Cunningham, The Law of Property, Second Edition § 8.6 Easements Implied From Plat (1993)(“A purchaser who acquires a lot in a platted subdivision will, to an extent that varies from state to state, acquire implied private easements to use streets and alleys…..shown on the plat”).
  4. If any of the Disputed Roads are not public roads, Plaintiffs have acquired an implied easement over each by prescription. “An easement by prescription is established when 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.” Lobato v. Taylor, 71 P.3d 938, 950 (Colo. 2002). In Colorado, the prescriptive period is 18 years. Id.; C.R.S. § 38-41-101.
  5. The ElkFalls subdivision residents have used the Disputed Road as their primary means of ingress and egress, without interruption, for almost 50 years. Also, for over 50 years the Elk Falls subdivision residentshave used the Disputed Roads openly and notoriously in that they drove their cars on them daily, they were frequently maintaining them (including: building culvert markers, putting up roadside sand boxes, building speed bumps, building and maintaining road signs, grading the roads, and fixing potholes),they were housing their mailboxes near them, and their children’s school buses were using them. The ElkFalls subdivision residents also never received permission to use the Disputed Roads. Specifically, there is no evidence that any of the prior owners of the land upon which the Disputed Roads sat –ever gave the ElkFalls residents permission to use the Disputed Roads, ever charged them to use the Disputed Roads, or ever expressed that the Disputed Roads were private. Rather, it appears that the prior owners – like all other ElkFalls subdivision residents - believed the Disputed Roads were public roads.
  6. Only in 2008 – when the Defendants’ purchased the DunwodyProperty – did anyone claim that the Disputed Roads were private. By then, 49 years of open, continuous and adverse use had already elapsed.
  1. Plaintiffs have a danger of real, immediate, and irreparable injury

When a party is denied its use of a property right, such as an easement, irreparable injury is presumed. Cody Park Property Owners’ Association, Inc., v. Harder, __ P.3d. __, 2009 Colo. App. LEXIS 1894 (November 25, 2009). The harm to Plaintiffs is also real and immediate, as the residents of ElkFalls, as well as the Plaintiffs, must traverse other, less safe roads to their homes, rendering use of their properties less convenient, and diminishing the value of their property. Plaintiffs suffer a danger of real, immediate, and irreparable injury should the court deny Plaintiffs’ Motion. Defendants are physically preventing Plaintiffs from using the Disputed Roads to reasonably access their homes. 17 parcels within the ElkFalls subdivision have no other means of ingress and egress but for the Disputed Roads. Without access to the Disputed Roads, the remaining ElkFalls subdivision residents face a hardship to get to and from their homes, because the alternate road includes a 25% grade, it is much longer, and it is extremely difficult to navigate during inclement weather. (See: Exhibit 1). Specifically, because of the grade of said road, and the recent inclement weather, four wheel drive vehicles were getting stuck in the snow. The difficulty of navigating the alternate route road is further evidenced by the numerous ElkFallssubdivision residents who were involved in traffic accidents on February 24, 2010.

  1. There is no plain, speedy, and adequate remedy at law

There is no plain, speedy, and adequate remedy at law.The main purpose of a temporary restraining order and a preliminary injunction is to maintain the status quo, pending a ruling by the court as to the respective rights of each property owner. Cody Park, supra. As will be proven, Plaintiffs may obtain injunctive relief when the relief provided by law will not adequately remedy the injury. Interference with real property rights has always been held to justify injunctive relief. Colorado courts have followed the general principle that an injunction is a “preventative and protective remedy” that is aimed at preventing future conduct and is not meant to remedy past wrongs. Proper v. Greager, 827 P.2d 591, 597 (Colo. App. 1992). In Proper, the court granted an injunction to protect against defendant’s conduct in blocking the plaintiff’s easement and reversed and remanded on the issues of damages to remedy the plaintiff’s injury caused by the defendant’s past interference with the easement. Id.

In the instant case, there is no plain, speedy, and adequate remedy at law because Defendants are denying the Plaintiffs the right to use specific real property. Without being able to use the Disputed Roads, Plaintiffs cannot reasonably access their homes and they must daily confront risk by traveling the alternate road.

  1. There is no disservice to the public interests by granting the injunction and the balance of equities weights in favor of granting the injunction

Equitable considerations weights in favor of the injunction because the Plaintiffs have used the Disputed Roads for almost 50 years without objection. Prohibiting Defendants’ interference with the Disputed Roads will serve the public interest and balance the equities of the parties. The Defendants are bound by the terms of the conveyances which dedicate the Disputed Roads as public roads. Further, as expressed above, Plaintiffs have established an implied easement by reference to a plat and an implied easement by prescription. Additionally, Plaintiffs cannot even conjure any disservice to the public interest that granting this injunction could cause. Rather, granting the injunction is in favor of the public interest as it would allow reasonable and safe access to the ElkFalls subdivision – which was the original Grantors intent.

  1. The injunction preserves the status quo pending a trial on the merits

This Court may grant a preliminary injunction to preserve the status quo of the parties pending a trial on the merits. See Cody Park, supra. A preliminary injunction, enjoining Defendants’ conduct in obstructing Plaintiffs’ access to the Disputed Roads, will prevent Plaintiffs from suffering any additional harm that Defendants’ conduct has caused them. Further, a grant of preliminary injunction will not unfairly affect Defendants’ use and enjoyment the Disputed Roads as they would still have access to them.

WHEREFORE, for the foregoing reasons, Plaintiffs respectfully request that this Court enter a temporary restraining order, and following a hearing, a preliminary injunction pursuant to C.R.C.P. 65, requiring Defendants to remove all obstructions, rocks, and poles from South Elk Creek Road, Juniper Road and Jensen Road, and any other roads and rights of way depicted on the subdivision plats for Blocks 1, 2, and 3, Elk Falls, and enjoining Defendants from placing any further or different obstructions on the Disputed Roads pending further ruling of this Court. Plaintiffs request an award of costs, and attorney fees pursuant to C.R.S. § 38-33.3-123.

Dated: November 8, 2018.

Respectfully submitted,

MONTGOMERY LITTLE & SORAN, P.C.

Bys/ Frederick Skillern Frederick B. Skillern, #7983

Nathan G. Osborn #38951

1

[1] Copy attached as Exhibit 10.